¶1Suit on a note, and to foreclose a mortgage. One, Monger, was admitted to defend. He set np that in September, 1859, he had a lien on the premises held by this mortgage, for materials furnished and work done on a house; and that on November 2 he filed the same in the recorder’s office, and procured a judgment, upon which said lands were sold, and he became the purchaser thereof. The mortgage was admitted to have been executed and recorded in October of the same year.
¶2On the trial, the record and deed in the case of Monger against Oreen was given in evidence. There was also evidence that the house built by said Monger was on the same land mortgaged, and that it was completed about September 4, 1859. There was no evidence as lo the amount due Monger, for which he claimed a lien, nor of his notice of lien and the recording thereof, other than as contained in said record of said suit. The plaintiff in the mortgage suit is not shown to have been a party to, or to have had notice of, that suit.
¶3The finding was against the plaintiff. Was the evidence sufficient? The solution of this inquiry depends upon thq construction to be given to the statute upon the subject of mechanics’ liens.
¶4The first section of that statute declares, that for materials furnished and work done, in certain instances, there may be a lien. The force that should be given to these words, “ may be,” depends somewhat upon the context. By looking into other portions of the same statute, wre find that it is provided that a lien may be acquired by filing a notice’ in the recorder’s office. It would appear then, that the mere fact that materials are furnished, or work done, does not alone constitute a lien; but th^jt the party must, by the notice so filed, declare his *254intention of holding a lien on the building, &c., so constructed. The party may give this notice at any time when he is prepared so to do, not outside of sixty days after he has compkted the building. The lien is then “ acquired,” 2. E. S., p. 182; which we construe to mean, attaches from that time. Under this view, the evidence was insufficient. The mortgage lien was the oldest.
¶5The judgment is reversed, with costs. Cause remanded, &c.