— Lumpkin J.
By the Court
delivering the opinion.
Freeman sold to Rowell, or you may say, to Rowell and Sanders, for they seem to have become jointly interested in the property, a house and lot, in the town of Griffin in January, 1854, took three notes for the purchase money, and gave his bond to make titles when the notes were paid. The purchasers employed Callaway to make some repairs upon the building; occupied the premises some six months, and finding that they could not pay for the property, the contract was rescinded; Freeman returning to them their notes? and they surrendering up to him his bond-for titles. Calla-way filed and recorded his lien under the Acts of 1834 and 1837, (Cobb, 555,557,) and subsequently sued and obtained judgment against Rowell and Sanders, and caused the execution issuing thereon, to be levied on the lot. Freeman interposed his claim, and the question being one of law, it was submitted to the Court; and the Judge decided that the property was not subject; and that ruling is assigned as error.
After the argument had commenced, Callaway .proposed to introduce testimony before the Court, that while the work was progressing, Freeman had knowledge of it, and made no objection. The circuit Judge refused to hear the evidence, and this also is alleged as error. Believing that the proof should have been heard, we shall treat the case as though it were in; and we are clear, that the Court was right in holding, that the property was not subject to the mechanic’s lien.
In Harman and another vs. Allen & Co., 11 Ga. Rep. 45, this Court held, that under the lien Acts of this State, one could only bind property to the extent of the interest which he had in it. We adhere to this decision. What then was the interest which Rowell and Sanders had in this lot? None, as against Freeman, until it was paid for. By the Act of 1847, (Cobb, 517) Freeman could have obtained judgment on his notes, filed a deed to the purchasers, sold the lots, and been entitled to the proceeds in preference to any other lien. Such is the express language of the statute. In other words, the vendor’s lien, under the law, is paramount to that of the mechanic, or of any body else, and it is right; it is his property until paid for. He could, upon the failure of the vendee to pay the purchase money, have ejected him, regardless of any incumbrance which the purchaser may have created.
What are the rights of the mechanics ? Looking to the interest of all parties, we hold that it is the privilege of the mechanic to tender to the vendor the purchase money. This was all he was entitled to, and thus have redeemed or rescued the property from this prior lien ; and if, from its enhanced value, by reason of the improvements he put upon it, he could thus save himself, very well; otherwise it was his misfortune to have worked for those who were unable to pay him, and who had no right to bind that property for his security.
And suppose Freeman did stand by, and see those repairs made without objecting, he had no right to interfere. He had sold the property, and had a right to suppose, that the contract would be performed on the part of Rowell and Sanders; and what right had he to gainsay the transaction between his purchaser and Callaway.
Judgment affirmed.