#### Sleeper & Co. *v.*Emery.

A contractor has no attachable interest in buildings erected by him on land of another, under a contract for a stipulated sum payable in instalments as the work progressed to the satisfaction of the owner of the land, the contract having been abandoned when the buildings were partially completed, and the contract price partly paid.

A party furnishing materials for the erection of such buildings can secure a lien thereon only by giving notice in the statutory mode; and a levy and sale on execution of the buildings, as personal estate of the contractor, will pass no title to the purchaser.

Trover, for a bouse and stable. Facts agreed. One Colton made a contract with tbe defendant to build a bouse and stable on tbe defendant’s land, on foundations made by tbe defendant, for tbe sum of $2,100, payable in instalments, tbe work to be done under tbe superintendence and to tbe satisfaction of tbe defendant, and to be completed at a time fixed; and Colton agreed to deliver up tbe buildings in perfect order and condition. Colton entered upon tbe work, but before be bad completed tbe buildings, and after be bad been paid by tbe defendant under the contract tbe sum of $1,600, abandoned the job and ran away, and. tbe defendant completed tbe buildings at a cost of $800.

After Colton bad left tbe state, the plaintiffs, who bad furnished building materials, brought suit therefor against Colton, and attached tbe buildings for tbe purpose of enforcing tbe lien which they claimed thereon. Judgment was rendered and execution issued against Colton, tbe buildings levied upon and sold at public auction as personal property and bid off by tbe plaintiffs, who demanded possession thereof of tbe defendant, and upon bis refusal to deliver them up brought this action.

*Barnard Barnard,*for tbe plaintiffs.

*A. P. Carpenter,*for tbe defendant.

Clark, J.

Tbe buildings to which tbe plaintiffs claim tbe right of possession were built for the defendant on bis land. Colton agreed to erect the buildings upon the foundations prepared by tbe defendant for tbe sum of $2,100, to be paid in instalments, — $500 when tbe buildings were raised and boarded, $500 when tbe outside was completed, $600 when tbe plastering was finished, and tbe remaining $500 when tbe buildings were completed. Colton abandoned tbe contract after receiving $1,600 for labor and materials furnished under it, and tbe defendant completed tbe buildings at an -expense exceeding tbe contract price. Upon these facts Coljton bad no title *375to the buildings. It was never understood that he was the owner. This is not a case of buildings belonging to the builder, though erected on land of another by permission of the owner of the land. In such a case the buildings do not become a part of the realty, but are personal property, and the owner may sell or remove them. But in this case the braidings were built for the defendant. The work was done under his superintendence ; and if the buildings were not regarded as accepted as fast as the work progressed, from the necessity of the case, upon payment of each instalment of the price, the title to the buildings so far- as then completed passed to the defendant. 2 Pars. Cont. 29. The plaintiffs therefore have no title and no right of possession to the buildings, because they derived none from Colton under whom they claim. At the time when the windows were furnished by the plaintiffs, for which they claim a lien, Colton was not the owner of the buildings, but a contractor merely; and the plaintiffs, having neglected to avail themselves of the statutory provisions for securing a lien in such cases, have no cause of action against the defendant upon the facts appearing in this case.

*Case discharged.*

Allen, J., did not sit: the others concurred.