¶1The opinion of the court was delivered,
¶2It is not very good pleading to a claim of a mechanic’s lien against a specified house and lot, to plead that the defendant “holds no lands bound by the alleged lien;” but, on carefully studying the case, it is apparent that the plea means to aver that only the leasehold of Blizzard, and not the title of the lessor, was bound by the lien. Even this is very defective as a means of raising an issue of fact; but it is all we have. It is the very same issue that we had before in Woodward v. Leiby, 12 Casey 487; and the present case raises no other issue of any importance.
¶3We still think we were right in our former decision. True, the Act of 28th April 1840, declares that the lien shall affect only the estate “of the person in possession at the time of the commencement of the building, and at whose instance the same is erected.” But if we were to interpret this very strictly, we should soon have the whole lien law frustrated. A lease for three or six months to a builder and possession under it, with a contract to build a house on the lot for the owner, would be exactly a ease for no lien a.t all; for the builder would be in possession without the house being erected at his instance, and the owner would have had it erected without being in possession. This interpretation will not do:
¶4It was not for such a case as this that the act was framed, but to correct the mischief developed in several cases (2 Rawle 343, 7 Watts 9, 9 Id. 52), of allowing the lien to sweep away by articles of agreement the estates of remainder-men, lessors and vendors, who had had no part in the contract for the erection of the building.
¶5Judgment affirmed. ■