Field, C. J. and Cope, J. concurring.
Bill filed to enforce a mechanic’s lien.
Crowell, the plaintiff, and Scranton, Drummond and Demarest, interveners, were employed by defendants, Bull & Spencer, to work on a building in Shasta, in October, 1856, and they continued to *371work until April, 1857. On the fifteenth of ¡November, 1856, Bull & Spencer, the owners, mortgaged the building to defendant Shea. After this date, the appellants, Yan Schank, Beckhard, Iieely and Hughson, were employed as mechanics on the building, and continued to work until the first of April, 1857. In April, 1857, Bull failed in business, and surrendered his property under the Insolvent Act, and the plaintiff and other mechanics, to whom considerable sums were due, filed their lien upon the building, and this action was brought by the plaintiff to foreclose his lien on the premises. The other mechanics under the statute intervened, and asked that their claims be also allowed. Shea and others, holding mortgages, intervened, and opposed the lien of the mechanics. The District Court rejected the liens in favor of the mortgages, on the first trial; but this Court (13 Cal. 54) reversed the judgment, holding that by statute “ the lien of the mechanics may be recorded within sixty days after the completion of the building, and by relation the lien attaches from the commencement of the work. All persons who deal with the property during the progress of the work are charged with notice of the claim of the contractors.” After the return of the case, the District Court made a decree by which it directed a sale of the premises, and a distribution of the proceeds of sale: first, to pay the costs; second, the claim of Crowell, who was employed in September, 1856 ; third, the claim of Demarest, who was employed in October,. 1856; fourth, the claim of Drummond, employed in October, 1856; fifth, the claim of Shea, who held a mortgage executed and recorded ¡November 13th, 1856 ; and after this, the several appellants in the order of time in which they commenced to work upon the building.
From this decree the appellants, the workmen who are postponed, appeal.
The statute under which this suit is brought (April 17th, 1856, Wood’s Dig. 537) provides for this lien, as here asserted, for work and materials. But there is nothing in the statute which gives priority to the mechanic who makes the first contract or first commences work. On the contrary, the general scope of the act would seem to exclude this idea, and to place all such claims on a footing of equality. It gives the lien to all, and directs that all claimants *372shall be made parties, and after sale the proceeds to be applied to the payment of all. (See sec. 7.) We cannot undertake to say that the Legislature meant to give a preference, when nothing in the" language employed implies such an intention. On the contrary, we think the rule of equality is equity. As the statute makes no discrimination among these lien holders, and as there seems to be no reason founded in justice for making it, we have no authority for discriminating. It is true, that this rule of equality would not apply, if some of these workmen make their contracts before a mortgage was executed by the owner, and some afterwards; for the first would have the priority over the mortgage, and the latter would not. The last contractors have equal claims, each one with the others of the class—but these claims have relation to the property as it stands at the time; that is, the last class in this case have a lien upon the premises incumbered by the mortgage, and subordinate, of course, to that incumbrance; the first class have a lien upon the property unincumbered, and superior to the lien of the mortgage. The first class would be paid in full before the mortgage, then the mortgage, then the last class. It is possible that some confusion may arise from the practical working of the statute, as we have construed it; but if so, this is the fault of the law, and we have no power to remedy it.
Judgment reversed and cause remanded.