rehearing">

Upon Petition to Reheaií, June 14, 1906.

Buchanan, J.,

delivered the opinion of the court.

*452The petition to rehear the decree entered in this case at the-January term, 1906, of the court, which was filed by W. J. Anderson alone, states that “we accept for the purposes of this petition all that is stated in the opinion, but we submit that nowhere does it take into consideration the fact appearing from the record, that as to Anderson these suits were not brought for more than nine months after the several claims were alleged to have become dpe. Anderson was not originally a party to-these causes. Plaintiffs brought him in by amending their bills,, but not within the prescribed time. How, as we shall presently show, Anderson was a necessary party and had to be sued within the statutory period or go forever unmolested. When these suits were brought Anderson was in possession of the-premises (Ho. 1206 Ployd Avenue) and had been for nearly four months previous thereto, when, on April 15, 1905, he obtained his deed from Pyan.”

It is true, as stated in the petition, that in deciding the case upon the original hearing no notice was taken of the fact that Anderson was not made a party to the suit of Stagg v. Sands, Trustee, &c., and the suits heard therewith, until more than six months after the amounts claimed by the complainants (mechanic’s lienors) had become due. That fact was not considered' at that time, although argued, because no assignment of error, based upon it, was made in the petition for appeal, nor was it made until the appellants’ reply brief was filed.

Where an assignment of error is made for the first time in the-reply brief of the appellant, or plaintiff in error, the court will not, as a rule, which has been announced in several cases, consider such assignment of error, because it is not a compliance-with the statute on the subject (Code 1904, sec. 3464) and is-not fair to the appellee or defendant in error. Orr v. Pennington, 93 Va. 268, 24 S. E. 928; N. & W. Ry. Co. v. Perrow, 101 *453Va. 345, 350, 43 S. E. 614; Hawpe v. Bumgardner, 103 Va. 91, 98, 48 S. E. 554; Newport News, &c., Ry. & Elec. Co. v. Bickford, ante, p. 182, 52 S. E. 1011, decided at January term, 1906.

Conceding for the purpose of this case, as is argued, that under the statute (Va. Code, 1904, sec. 2481) the Chancery Court had no jurisdiction to enforce the ^ mechanic’s liens of the complainants against the house and lot of Anderson unless he was made a party to their hills within the time prescribed by the statute, and that that question ought to have been considered by this court because jurisdictional, we do not think that a consideration and decision of that question could have resulted in a reversal of the decree of the chancery court appealed from, under the facts disclosed by the record.

If Ryan, the grantor of Anderson, had kept and performed the terms of his contract with Mahony, from whom he purchased the lot, and had been entitled to a conveyance of the legal title, the contention of Anderson that the house and lot conveyed to him could not be subjected in this case, and that the case as to him ought to be dismissed, might he sustained. But that is not this case, as appears from the record, and as is shown by the opinion of the court upon the original hearing. Ryan had not performed his contract with Mahony. To aid him in performing that contract, Mahony had advanced him $3,000, which was a lien upon the three houses and lots, which Ryan was to receive in part payment for erecting the two houses on the lots retained by Mahony, and in addition, Mahony’s two houses and lots were subject to the mechanic’s liens asserted in the case. Ryan was not, therefore, entitled to a •conveyance of the three houses and lots until he had paid Mahony the $3,000 advanced, as above stated, and until Mahony’s two houses and lots were freed from the mechanic’s liens, which had been perfected against them.

*454If Ryan were still the owner of the Anderson house and. lot, although the liens of the mechanics had not been perfected against them, it is quite clear that they, along with the other two houses and lots, which Ryan was to receive from Mahony, could be subjected to the payment of the $3,000 due Mahony and the debts due the mechanics, which were liens not only1 on Ryan’s two houses ánd lots, but upon Mahony’s also. This-being so, how did Ryan’s sale and conveyance to Anderson relieve that house and lot from its liability for the payment of these debts? The sale and conveyance to Anderson could have no effect upon Mahony’s rights, except as to the order in which the houses and lots retained by Ryan and the house and lot sold to Anderson should be subjected. Anderson, by his purchase, only acquired such interest in the house and lot as Ryan had as against Mahony.

As was said by Judge Allen, in Yancey v. Mauck, &c., 15 Gratt. 300, 306, “A purchaser or incumbrancer of a mere-equitable title must take the place of the person from whom he purchases. The vendor may resort to the estate, whether a purchaser of the mere equitable estate from his vendee purchasd with or without notice. For want of notice or the payment of a valuable consideration cannot place him in a -more advantageous position, than his vendor.”

The house and lot purchased by Anderson is, therefore, as liable for the $3,000 due Mahony as if it were still owned by Ryan. Conceding that it is not liable for the mechanic’s lien debts, because Anderson was not sued within the time prescribed by statute, it is liable for any sum that Mahony may have to pay to release his two houses and lots from those liens, for until his two houses and lots are freed from those liens, Mahony cannot be required to convey the Anderson house and lot to Ryan or anyone else in specific execution of his contract *455with Ryan. If the proceeds of the Ryan houses and lots, other than the Anderson house and lot, are not sufficient to satisfy Mahony’s debt of $3,000 and the lien debts of the mechanics, Mahony would have the right to have the Anderson house and lot subjected to satisfy any balance thereof that might be due him, and the mechanic’s lien claimants would have the right to subject Mahony’s two houses and lots for any balance due them. To the extent that Mahoney’s property eould be subjected to the payment of any balance of the mechanics’ liens, to the same extent would Mahony have the right to subject the Anderson house and lot; for Mahony cannot be required to part with his title to the Anderson house and lot any more than to the other two houses and lots which he had agreed to convey to Ryan, except upon the terms of his contract with Ryan.

We are of opinion, therefore, that while the debts due the mechanics may not be liens upon the house and lot purchased by Anderson from Ryan, the house and lot are liable, under Ryan’s contract with Mahony, for any balance thereof which the proceeds of the sales of Ryan’s two houses and lots fail to pay and which is a lien upon Mahony’s two houses and lots, and that the Chancery Court • did not err in directing the Anderson house and lot to be sold for the purpose of satisfying such balance, if any, and that its decree should be affirmed.

Affirmed.

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