The St. of 1819, c. 156, whiсh appears to have been the first of many which have been enacted in this Commonwealth on the same subject, рrovided that every person who should, by contract in writing with the owner of any piece of land, furnish labor or materials for еrecting or repairing a building thereon, should have a lien upon the land for the amount due for such labor or materials. It was also provided (see Rev. Sts. c. 117, § 26) that the person who procured the work to be done should be considered as the owner for the purposes of the process, and to the extent of his right and interest, though he should have an estate for lifе only, or any other estate less than a fee simple, and that the lien should bind his whole estate and interest in the land. The law now in force (Gen. Sts. c. 150) has done much to extend the remedy to a large class of cases, and to make it more convenient of enforcement. It is no longer restricted to the case of written contracts, and it is sufficient to show that a debt is due for labor or materials furnished by virtue of an agreement with, or by consent of, the owner of the building or structure, or any person having authority from, or rightfully acting for, such owner, in procuring or furnishing the labor or materials. But there is no substantial change in the mode of proceeding in order to enforce the lien, and, although the thirty-third section of the present statute is not expressed in the same language as the twenty-sixth section of the Rev. Sts. c. 117, we do not think it was intended to produce any radical оr substantial change of the law in relation to that particular subject matter.
The order of notice issued upon the filing оf the present petition in court has been served upon the lessor only. No other party has been summoned in to answеr, and apparently the petitioners do not expect or intend in the suit to enforce any claim against the estate of the lessee in the land and building, although by the terms of the statute his estate is expressly made liable, and he was the party who undertook to cause the building to be erected or repaired. Does the law authorize the holder of such а lien to pass over, and leave wholly unmolested and
It is very clear that, as the law stood under the Bevised Statutes, the person spoken of as “ the owner of the land ” was the person who made the original building contract. He is variously spoken of in the chaрter on the subject, as the owner, the contractor, the debtor, the party who procures the work to be done; “ by whiсh various designations the same person is intended. Such is the party intended to be the defendant and to be summoned in the suit.” Howard v. Robinson,
It may be said that, although an estate less than a fee simple may be a long term of years, yet it may also be a very short term of years оr months. But we may well suppose that the legislature assumed that a tenant for a short term would not be likely to make improvements for the benefit of the reversion at his own expense, and that there was no practical necessity for a statute provision to meet such a contingency. They may also have concluded that there was no hardship, under the сircumstances, in leaving it to the carpenter or mason to inform himself as to the nature of the interest of the party in thе estate upon which he furnishes labor and materials. But however that may be, we are clearly of the opinion that the suits of these petitioners cannot be maintained against the lessor, which is all that we are called upon to decide. , Petition dismissed.