Knight v. Fair. ment was pronounced; not when the day was appointed for pronouncing it. (Wood's D., 305.) We can see no error in the record, and the judgment of the District Court is therefore affirmed. KNIGHT v. FAIR. A purchaser at sheriff's sale may have a lien upon the property prior to that of the redemptioner. The fact that he is the creditor does not divest the lien. He may be both a creditor and a purchaser, and still have a prior lien to that of the redemptioner. This can only be on the principle that the legal estate is still in the judgment-debtor, until the delivery of the sheriff's deed. In all cases where a mere lien exists, the legal estate must be in some other party than the mortgagee. This legal estate, and the consequent right to discharge the lien and save the estate, is of value, and can be sold. APPEAL from the District Court of the Ninth Judicial District, County of Siskiyou. The facts appear in the opinion of the Court. J. A. Fletcher for Appellant. The sum of $472, paid to the sheriff, was not sufficient. It should have been $1,014 35. The $271 13 paid to the clerk should have been paid either to the purchaser or sheriff. Wood's Dig., § 231-2-3; Vandyke et al. v. Harmon & Barton, 3 Cal. R., 295; The People ex rel. Dunn v. Boring, sheriff, Oct. T., 1857. BURNETT, J., delivered the opinion of the Court-FIELD, J., concurring. Application for mandamus to compel sheriff to make a deed to the purchaser of real estate. Knight obtained a judgment against Calham and others, for $637 58, with interest at five per cent. per month, and for $349, with interest at ten per cent per annum, and $150 90 costs, on May 29th, 1856; making in all $1,137 48. On the 4th June, 1856, there was paid the sum of $491 10, after deducting sheriff's costs, $88 90, for collection, leaving the sum of $646 38. July 23, 1856, the sheriff sold the real estate to Knight for $400. On the 23d January, 1857, the successor in interest paid to the sheriff $472, and to the clerk $271 13, making in all the sum of $743 13, for the purpose of redeeming the property. The purchaser refused to accept the same as sufficient, and applied for this writ to compel the sheriff to make him a deed. The writ was denied, and the plaintiff appealed. Knight v. Fair. The two hundred and thirty-first section of the Code allows the judgment-debtor, or a redemptioner, to redeem within six months after the sale, by paying the purchaser the amount of his purchase, with eighteen per cent. thereon, in addition, together with any assessments or taxes, and interest on such amount; "and, if the purchaser be also a creditor, having a lien prior to that of the redemptioner, the amount of such lien, with interest." It is certain, from this explicit language, that the purchaser may have a lien upon the property prior to that of the redemptioner. The fact that he is the creditor does not divest his lien. He may be both a creditor and a purchaser, and still have a prior lien to that of the redemptioner. This can only be upon the principle that the legal estate is still in the judgment-debtor, until the delivery of the sheriff's deed; and, if in the debtor, it is such an estate as may be the subject of a lien, a sale under execution, or of a conveyance by deed from the debtor. In fact, it may be laid down as true, that in all cases where a mere lien exists, the legal estate must be in some other party than the mortgagee. This legal estate, and the consequent right to discharge the lien and save the estate, is of value, and can be sold. We are compelled to give the statute this construction. If we do not, it has no meaning. This was expressly decided by this Court in the case of Van Dyke v. Herman & Barton, (3 Cal. R., 293.) In this case, when the several payments were made upon the judgment, there were no directions given by the defendants as to the manner in which they should be applied; and the plaintiff, therefore, had his election, and applied them as follows: first, to the payment of the costs; second, to the payment of that part of the judgment drawing ten per cent. per annum; third, to the payment of that part of the judgment drawing five per cent. per month; applying the payments in this way, the amount tendered was not sufficient, as will be seen by this calculation, which is substantially accurate. Amount due July 23d, 1856, Two months' interest on $637 58, five per cent., From which deduct amount bid, Interest at five per cent. per month, from July 23, 1856, to January 23, 1857, being six months, Amount of bid, and eighteen per cent., Carried forward, - $646 38 63 75 $710 13 400 00 $310 13 · 93 00 472 00 - $875 13 A tenant who puts up machinery for a mill, in a house leased, and fastens it by bolts, screws, etc., to the house, has the right to remove it; but as between vendor and vendee, such machinery would be considered as a part of the realty. The evident intention of the act, in relation to mechanic's liens, was to give mechanics and artisans a lien for all work done by them, upon any description of property. The first section gives a lien upon the superstructure itself, as distinct from the land; and the fourth section gives a lien also upon the land, when the same is owned by a person who caused the superstructure to be erected. The object of the act was to give the mechanic a lien upon whatever interest the person who caused the superstructure had, and which could be sold under execution. APPEAL from the District Court of the Twelfth Judicial District, County of San Francisco. This was an action to enforce a mechanic's lien. The facts appear in the opinion of the Court. McDougall & Sharp for Appellants. The property upon which a lien is claimed by plaintiff in this action, is personal property, and cannot be the subject for a lien for repairs, except whilst in the possession of the mechanic or artisan who made the repairs; as provided in section ten of the mechanics' lien law. In this case there is no pretence that the machinery has been in possession of plaintiff since the completion of the work. The lien claimed is simply on the mill and machinery, and not on the building and ground, although the machinery is fastened to the building by nails, bolts, screws, etc. The law of fixtures has been materially modified in favor of trade and manufactures, etc. It is not claimed and should not be maintained by Dore & Ross, that the mill or machinery is a fixture, as between Dore & Ross, the landlords, and defendants Rankin & Beach, the tenants, or that the tenants could not remove the mill at the expiration of any month, or at the termination of the lease. In Lawton v. Lawton, 3 Atkyns, 13, Lord Hardwicke discusses the law of fixtures, and determines that fire-engines, vats, brewing-vessels, and other machinery, McGreary v. Osborne. though annexed to the freehold, yet as they are laid for the convenience and promotion of trade and manufactures, the landlord cannot retain them, and the tenant can remove them at the expiration of the lease. See, also, 1 Atkyns, 477; 17 Johnson, 121; 14 Mass., 356; Toll Law of Executors, 96; 6 Johnson, 5; 20 Johnson, 29. If the mill and machinery be considered real property, or a fixture, then the plaintiff can have no lien, because, to be a fixture, it must be a part of the realty, or the building in which it is situated; how then can the plaintiff have a lien upon the mill, a part of the land and building, and not upon the land and building itself. Suppose he had a lien, and should get a judgment of foreclosure, and sell the mill and machinery, what rights would the purchaser acquire? Could he use possession, and enjoy or remove the mill, a part of the realty, without being a trespasser upon the owner of the fee? Again, Dore & Ross are the owners of the realty, and not parties; can the plaintiff foreclose and sell a part of the realty without making the owners parties? We think not. The plaintiff's lien, at the most, could only bind the interest of Osborne. Statutes of 1856, page 204, § 4; Bottomly v. Grace Church, 2 Cal., 90; English et al. v. Foote et al., 8 Sm. & Mar., 444; Gray v. Caviere, 5 Cal., 511. Mechanics' lien law is in derogation of the common law, and must be strictly construed. Bottomly v. Grace Church, 2 Cal., 90. A. H. Hitchcock for Respondent. The law respecting liens upon personal property, does not apply to fixtures and superstructures erected for the purpose of trade and manufactures, and which are quasi movable, and may be removed by the tenant. The lien law has been amended from time to time, and the object of the law, as it appears by the amendments, is to give mechanics and material men security for labor done and materials furnished, in every conceivable case. The first law was enacted in 1850, (Compiled Laws, 808,) and gave a lien on buildings and wharfs. In 1853, a supplementary act was passed (Compiled Laws, 811,) by which a lien was given in certain other cases therein specified. The law, up to this time, however, was very limited in its operation. It was again amended, (Session Laws, 1856, p. 203,) and among other things, the very comprehensive word superstructure inserted; so that in addition to the "building and wharfs," a lien was also given upon superstructures. § 1, ib. Section one gives to all artisans, etc., a lien for repairs, etc., on any building, wharf, or structure, without any qualification. Section four, ib., further, and in addition to a lien on the building or superstructure, gives a lien on the land on which the McGreary v. Osborne. building or superstructure is erected, if at the time the work," etc., was done, they, the land and superstructure, belonged to the same person. The same section, in addition to the lien on the building or superstructure, gives a lien, also, on the interest which the person had in the land, if less than a fee-simple, who caused the building or superstructure to be erected. A superstructure, therefore, by this statute, may be a part of the freehold, and subject to the laws that govern freeholds, as when it is affixed thereto, and is the property of the owner of the land. 2 Kent Com., 343. It may be a tenant's fixture, erected for the purposes of trade or manufacture; in which case it is personal property, and quasi movable. 2 Kent Com., 343, 339. This is the case now before the Court. The only interest that Osborne had in the land on which the mill was erected is a tenancy; the mill, consequently, is a superstructure, erected for the purpose of manufacture; and in addition to the lien which we have in the mill, by section four, we have also a lien on the lease by section four. BURNETT, J., delivered the opinion of the Court-TERRY, C. J., concurring. Dore & Ross leased to Rankin & Co. a frame building, resting on piles driven into the earth. The basement floor was on the ground; and in this building Rankin & Co. put up machinery for a steam flouring-mill. The frame in which the machinery was placed was supported by props from the basement story, and was also fastened to the building by screws, bolts, and nails. During the continuance of the lease, Rankin & Co. sold the property to Osborne for $7,000, he paying down $3,000, and executing his promissory notes for the balance. In the written contract of sale executed by all the parties, it was stipulated that Osborne was to have immediate possession; and, upon payment of the note, Rankin & Co. were to execute a bill of sale. In case Osborne failed to pay any of the notes, Rankin & Co. were authorized to take possession of the property and sell it, paying any surplus that might remain after discharging the notes to Osborne. While Osborne was in possession, and before of the notes became due, he employed the plaintiff to repair the machinery. After the repairs were made, Osborne sold to Veatch, and he to Rankin & Co., who executed a new contract of sale to Veatch. This suit was brought to recover the amount due for work and labor, and to enforce a mechanic's lien upon the machinery. The plaintiff had judgment in the Court below, and the defendants appealed. any one The rule in reference to fixtures is applied with different degrees of strictness as between different parties. (2 Kent, 345.) As between the landlords and tenants in this case, there would |