Fisher v. Rush

The opinion of the court was delivered by Sharswood, J. The lease by the plaintiff in error to Harding was in this instance a contract by him to erect the building. He wras to be paid, not in money, but in the term for years of the premises; the increased rent would be his until the termination of the lease, when it would enure to the benefit of the life-tenant and owners in fee. It is clear that Mrs. Fisher was “ the person in possession at the time of commencing the said building and at whose instance it was erected,” and so within the letter as well as spirit and intention of the Act of April 28th 1840, sect. 24, [44] Pamph. L. 474. The case is not distinguished from Woodward v. Leiby, 12 Casey 437; Leiby v. Wilson, 4 Wright 63; Hopper v. Childs, 7 Id. 310. It is equally clear that the provisions of the Act of August 1st 1868, Pamph. L. 1168, do not apply. That act is specially confined to debts contracted “ in or about the repair, alteration or addition to any house.” The claim filed in accordance with the fact is for a debt contracted, “ for and toward the erection and construction ” of the building. Although the words “ alteration and repairing of and improvement” are added, they are evidently mere surplusage and cannot change the character of the lien. Judgment affirmed.