¶1The question argued by the respondent is whether there was evidence to warrant a finding that the labor and materials furnished by two of the petitioners, and the labor furnished by the other petitioner, were furnished with the consent of the respondent Baxter, who was the owner of the real estate at the time when their respective contracts were made. The report of the auditor on this point, the testimony of the respondent himself, and the other evidence in the case, not only well warranted, but almost required this finding, under the rule of law stated in Davis v. Humphreys, 112 Mass. 309, Carew v. Stubbs, 155 Mass. 549, Smith v. Norris, 120 Mass. 58, Worthen v. Cleaveland, 129 Mass. 570, and Hilton v. Merrill, 106 Mass. 528.
¶2The respondent’s seventh request for a ruling was rightly refused. The petitioner was not called upon to show consent of the owner to the creation of a debt for the labor or materials furnished, but only his consent to the furnishing of the materials or the performance of the labor in the erection of a building on his real estate. Pub. Sts. c. 191, § 1. B. L. c. 197, § 1. In the language of the opinion in Vickery v. Richardson, 189 Mass. 53, 55, the consent required “ is to the performance of the work, not to the lien, or the amount for which under it the interest of the owner in the land can be charged.”
¶3The respondent’s contention as to the inaccuracy in the certifi*486cote is met by the agreed statement of facts and by the decision of this court in Devine v. Clark, 198 Mass. 56. See also Smith v. Norris, 120 Mass. 58; Vickery v. Richardson, 189 Mass. 53.
¶4Inasmuch as the contract of Sanborn to furnish materials was made with the consent of the owner of the real estate and of the contractor that bargained for them, who became the owner of the real estate before the materials were furnished, so that the contract was made with the person who was the owner when they were furnished, it was not necessary to give a notice of an intention to claim a lien to the former owner who subsequently had acquired a different interest under a mortgage. Carew v. Stubbs, 155 Mass. 549.
¶5Apart from this, the trial judge rightly found that the respondent’s title by mortgage was not acquired under a mortgagor who had only an instantaneous seisin. Before the respondent’s mortgage took effect, the mortgagor had made an important contract with the holder of the first mortgage, whereby he had acquired rights to be exercised in the use of the property, and had given rights in it. In this respect the case comes within the decision in Libbey v. Tidden, 192 Mass. 175, 185.
¶6Exceptions overruled; orders of judgment and sale affirmed.