On Petition for Rehearing.
TEIGEN, Judge.The respondent has petitioned for a rehearing in which he argues that the court overlooked the record and went outside of the theory and facts on which the case was tried, that the opinion does not support the determination that the contract vendee is the record owner contemplated within Section 35-12-21, N.D.C.C., that the court should have found that the respondent was a successor of Whipkey and that the court overlooked the equities.
We see no merits to the petitioner’s arguments. It is true the parties to this action stipulated that Whipkey was 'the record owner of the property affected by the lien but such stipulation is a conclusion not borne out by the facts. It is true that Whipkey was the record owner of the legal title to the property but her legal title thereto was in no way affected by Lewis’s mechanic’s lien which was against the equitable interests only. There is no indication in the record that Whipkey in any way acquiesced in the improvements made by Lewis and there is no claim to that effect.
Our statute on mechanic’s liens, Section 35-12-16, N.D.C.C., entitled “Land subject to lien” provides:
“The entire land upon which' any building, structure, or other improvement is situated, or to improve which labor is done or work or materials furnished, including that portion of the land not covered thereby, shall be subj ect to all liens created under this’ chapter to the■ extent of all the right, title, and interest of the owner for whose immediate use or benefit the labor was done or materials furnished.” (Emphasis supplied.)
The immediate use and benefit of the work performed by Lewis inured to Larson, the contract vendee, who. was in possession of the land. Under such circumstances we have held the vendee is deemed the owner of the land within the meaning of this section. Salzer Lumber Co. v. Claflin, 16 N.D. 601, 113 N.W. 1036. In that case this court said on page 605 of the North Dakota Reports, 113 N.W. on page 1037:
“The materialman is simply subro-gated to the interest that the vendee had in the contract, and no more. The vendor’s rights are not at all to be affected.”
We reaffirmed this rule in Johnson v. Soliday, 19 N.D. 463, 126 N.W. 99, and *635again in North Dakota Lumber Co. v. Haney, 23 N.D. 504, 137 N.W. 411. See also Nearing v. Coop, 6 N.D. 345, 70 N.W. 1044; Wadge v. Kittleson, 12 N.D. 452, 97 N.W. 856; Woodward v. McCollum, 16 N.D. 42, 111 N.W. 623.
The owner of a mechanic’s lien by the foreclosure thereof acquires only the interest of the owner of the land and the holder of a prior mortgage is not a necessary party. Bovey-Shute & Jackson v. Odegaard, 53 N.D. 871, 208 N.W. 111. This court has repeatedly held that a ven-dee is the equitable owner while the vendor holds the legal title as security for his ■claim. They are practically in the same position as a mortgagor and mortgagee. North Dakota Lumber Co. v. Haney, supra.
For these reasons Lewis’s foreclosure of the mechanic’s lien against Larson in no way could affect the title or ownership of Whipkey. When a contract vendee -becomes liable upon a mechanic’s lien against his equitable interest in the land, the interest of the contract vendor is not subject to the lien, unless it is shown he acquiesced in the purchase. North Dakota Lumber Co. v. Haney, supra.
There would be no purpose in serving Whipkey with the notice provided under Section 35-12-21, N.D.C.C., as Lewis’s lien was effective only as against Larson’s equitable interest in the land and in no way could affect Whipkey’s interest where there is no showing that Whipkey acquiesced in the improvement. All that Lewis was entitled to in the lien foreclosure was to assert his claim against Larson’s equitable interest in the land. Thus the “owner of the property affected” was Larson at the time of the mechanic’s lien foreclosure and not Whipkey.
Statutes in pari materia should be construed together. Murray Bros. v. Buttles, 32 N.D. 565, 156 N.W. 207. Section 35-12-21, N.D.C.C., requiring service of the notice, is a part of the mechanic’s lien law and a part of the same chapter as Section 35-12-16, N.D.C.C., which defines land subject to lien. The owner referred to in Section 35-12-21 is the same owner defined in Section 35-12-16, N.D.C.C.
The petitioner also claims that the respondent, Midwest, was the successor of Whipkey, the contract vendor. To so hold would permit a junior lienholder (Midwest held a mortgage on the land given by Larson which was an inferior lien to that of Lewis’s mechanic’s lien) to purchase the contract vendee’s equitable title and, by paying the contract, to gain an interest superior to that of the mechanic’s lien. There is no merit to the argument.
We believe the equities of the case are well settled in the opinion and will not be discussed further herein.
For the reasons stated, the petition for rehearing is denied.
MORRIS, C. J., and TEIGEN, STRUTZ and BURKE, JJ., concur.ERICKSTAD, J., not having been a member of the Court when the case was submitted, did not participate.