delivered the opinion of the court.
This bill was filed by the appellant to assert and enforce an equitable title to certain lots in the town.of Columbus, and the buildings erected thereon.
It appears by the bill, that in the year 1846, one Winston conveyed the lots to one Malone, who executed a deed of trust to one Banks, as trustee, to secure the purchase-money; that on the 1st June, 1847, Malone conveyed the lots to one Hill, who executed a deed of trust to one Stewart, as trustee, to secure his purchase-money ; that in March, 1848, Hill executed to one Symons a note for a sum of money due for lumber and materials furnished by contract of Symons to Hill for the erection of a. building upon the lots; and in September, 1848, that suit was brought upon that note for the purpose of enforcing the statutory lien, and that judgment was rendered thereupon, subjecting the lots and the house erected thereon to the satisfaction of the debt, under which judgment the appellant purchased the premises at execution sale, in February, 1849 ; that on the 2d of May, 1848, Hill conveyed the premises to Stewart, as trustee, to secure a debt due to Haviland, Clark & Co.; that after the date of the contract of Hill and Symons in relation to the lumber and materials, Haviland, Clark & Co. paid Malone the amount due him upon the trust deed of Hill, and took an assignment of that deed; that before the sale of the property under the deeds of trust for the benefit of. Malone, and of Haviland, Clark & Co., Otley tendered to Haviland, Clark & Co. the amount due on the deed of June 1st, 1847: and afterwards, that the lots and buildings were sold under both of the deeds of trust held by Havi-land, Clark & Co., and were purchased for their benefit.
The bill tenders the amount paid by Haviland, Clark & Co. for the trust deed of Malone, and seeks the enforcement of the complainant’s equitable title against the entire property, or against such part of it as he may be entitled to, and that the defendant’s title be divested.
The appellees filed a demurrer to this, which was sustained, and the bill dismissed, and hence this appeal was taken.
*37The grounds of demurrer taken in the court below, and the errors insisted upon here, present two questions for consideration :
1. Whether the appellant acquired an equitable title both to the lots and the buildings, under his purchase at sheriff’s sale, and in which he is entitled to protection upon paying the amount of the prior lien arising from the deed of trust to Malone.
2. Whether he did not acquire, by his purchase, a title to the buildings erected upon the lots.
1. It appears that, at the time of the appellant’s purchase, the deed of trust of 1st June, 1847, was in full force, and unsatisfied. It was a lien upon the lots prior to that under which the appellant purchased ; and the money due upon it being unpaid, the property subject to it was not liable to sale under the execution to enforce
♦the mechanic’s lien. The rule is well settled in this court that, under such circumstances, no title either legal or equitable passed to the purchaser in virtue of the execution sale.- Boarman v. Catlett, 13 S. & M. 149; Wolfe v. Dowell, Ib. 103; Baldwin et al. v. Jenkins et al. 23 Miss. 206. Hence, the appellant acquired no interest in the lots which he could recover by this bill; and as to that part of the property in controversy, the bill was properly dismissed.
2. Did he acquire any right to the buildings erected upon the lots ?
The bill shows, that although the deed of trust for the benefit of Malone was outstanding and unsatisfied in March, 1848, when the lien for lumber and materials was created, yet that Hill, by its terms, was entitled to the possession until the premises should be sold under it, and that the sale did not take place until long after-wards. Whilst so in possession, the lien was created by contract with Hill; and the question is, whether he had the right, by that contract, to create a lien upon the buildings, which could take precedence of the lien of the deed of trust then subsisting; and this depends upon the provisions of the Act of 1840, Hutch. Code, 627, by which the rights of the parties under the proceeding are governed.
By the Act of 1838, Hutch. Code, 627, a lien for work and labor, or for materials furnished, in the building of any house, was authorized in favor of the workmen doing the work, or the person *38furnishing the materials, in the construction of the house, to be enforced against the building, “in preference to any other lien, originating subsequently to the commencement of said building, or date of the contract therefor.” It was held by this court that, under this statute, a building could not be subjected to this lien against a prior lien by mortgage, which bound the land upon which the building was erected; because the building was annexed to the freehold, and could not be severed from it; that the statute did not extend the lien either to the land or to the building. English v. Foote, 8 S. & M. 444.
But the Act of 1840 materially enlarges the right conferred by this statute. It provides that, for such labor or materials furnished upon any building, the party doing the work, or furnishing the materials, “ shall have a lien, to secure the payment of the same, upon the buildings and 'materials aforesaid; and said buildings and materials shall not be subject to any other lien whatsoever, until the aforesaid lien shall have been cancelled.”
Taking this in connection with the provision of the previous statute, it appears to be manifest that, as to the buildings erected by the labor or materials of the party furnishing them, it was intended to authorize a lien superior to any lien subsisting upon the land; for the language is broad and pointed, “ said buildings and materials shall not be subject to any other lien whatsoever.”
If there could be any doubt that it was intended to give such liens precedence over all other liens upon the land, it would be removed by the part of the statute immediately following this provision, that “ in the event of there being no other lien in existence on such lot or parcel of ground, ¿-e., then and in that case, the said lot or parcel of ground, &c., to bo equally subject to the payment of said contract as in case of the house, building, &c., erected or constructed thereon.”
It is therefore manifest that the legislature had in view subsisting liens upon the land, at the time of the contract in relation to the building; that as to the building, it was intended to render the lien paramount to all prior liens upon the land, and to extend the lien to the land when there was no subsisting prior lien upon it.
It is insisted in behalf of the appellees, that the case of Hoover v. Wheeler, 23 Miss. 314, settles the question that the building is *39not liable to the lien when the land is bound by a prior lien. But the question does not appear to have been distinctly presented, or considered in that case. The nature of the mechanic’s lien does not distinctly appear — whether founded upon a claim for labor or materials furnished in erecting a building, or in repairing one already erected — and the distinction between the lion upon the building, and that upon the land, with reference to the prior mortgage, is not considered. The case cannot, therefore, be considered as decisive of the question here presented.
The only remaining point to be considered is, whether the lien upon the buildings was created by a party competent to create it in order to give it validity under the statute.
It was made by Hill, the mortgagor in possession, who was entitled to hold possession until divested of it by sale. It does not appear whether the condition was broken or not; but his possession was in virtue of the deed, and he was in law the proprietor, having the right to discharge the mortgage and retain the property. He was, therefore, such a “proprietor” as is contemplated by the statute.
It follows from the foregoing views, that, upon the facts stated in the bill, the buildings and materials were subject to the lien under which the appellant purchased, and that he acquired a right to them in virtue of his purchase, but that he acquired no interest in the ground on which they wore erected. The bill was, therefore, maintainable upon the facts stated, as to the buildings and materials; and the demurrer being to the whole bill, was improperly sustained.
As to the propriety of coming into equity to assert the appellant’s right to the buildings and materials — it appears from the peculiar nature of the case, that no other court is competent to give adequate relief without injustice to the respective rights of the parties. The appellant being entitled to the buildings and materials, with the right to remove them from the ground, at the appellees being entitled to the ground, it is proper that a court of equity should direct how the appellants right to remove the buildings and materials should be exercised, so as to do no prejudice to the rights of the appellees as owners of the ground, and this could not be done by a court of law. It appears, therefore, to be a proper case for the interposition of a court of equity.
The decree is reversed, and demurrer overruled, so far as the relief *40sought by the bill extends to the buildings and materials on the lots in the pleadings mentioned; and in that respect the causéis remanded, and the appellees required to answer the bill within sixty days.