Brent, J.,
delivered the opinion of the Court.
The record in this case discloses some irregularities, which prevent an affirmance of the decree.
*578The mortgage to the Independent Savings and Building Association of Laurel, dated the first of December, 1874, is a lien of prior date to the mechanics' lien, for the enforcement of which the bill of complaint is filed. It is objected that this association is improperly made a party to this proceeding, so far as this mortgage is concerned, and that the decree should not have bepn passed against them. We think the objection is well taken. They do not seem to have answered the bill, and as prior mortgagees, the decree is improvidentlv passed against them. The sale of the property to pay the mechanics’ lien must be had subject to this prior encumbrance, unless the encumbrancer comes in and consents to be made a party. ’
It is also objected that the notice of the lien is not in time so far as some of the materials mentioned in the bill of particulars are concerned. There seems to have been three separate deliveries of materials, but whether upon a continuous contract, or separate contracts, does not appear from any proof in the record. ■ The- léarned Judge of the Circuit Court, in the opinion filed' by him, says that the notice was duly given, and that “ the sale and delivery of the lumber is fully shown.” As the record contains none of the proof taken, the statement of .the Judge as to what was proven before him is conclusive. Upon this appeal, therefore, the materials must be considered as having been delivered under one continuing contract, and the notice as being in time to cover all the items charged in the bill of particulars.
The decree, is informal in two respects. It does not ascertain.the amofint of the lien for materials .furnished, and allows no day before the sale for its payment.
If the latter is proper, an ascertainment of the amount. due is a necessary pre-requisite. It is true the decree in this case must be in rem, and cannot be in personam, yet its character is not changed by directing a sale, unless the amount found due is paid on or before a day named. It is *579nevertheless a decree in rem. Wood vs. Fulton & Starck, 2 H. & G., 71. Unless a day is allowed for payment, great hardship might follow, especially where the claim set up may have been resisted in good faith. The amount charged may have been excessive, or the defendant have honestly believed the lien did not attach. If mistaken, it cannot be that the law contemplated a decree should be absolute for the sale without giving a day for the payment of the sum found due. A subsequent mortgagee may find it to his interest to pay off the claim and thus avoid the costs and expenses incident to the sale. Many instances might be cited in which it would be eminently equitable to give a day for payment. This, we think, should be done. A decree for a sale, unless the amount due is .paid on or before a certain day to be fixed in the sound discretion of the Court, will fully Satisfy the requirements of the Act under which these proceedings are had, and at the same time be full equity do all the parties concerned.
(Decided 13th June, 1877.
The decree in this case will not be affirmed or reversed, but the case sent back under the provisions of Art. 5, sec. 28, of the Code, that -the proceedings may be so amended as to conform to the views which we have expressed in this opinion.
Cause remanded without affirming or reversing decree of the Circuit Court.