Gilfillan, C. J.
Action to foreclose a mechanic's lien. The contest on this appeal is between Hammer, a lien-claiming defendant, and’ Corey, the owner defendant) who appeals from an order denying his motion for a new trial after a decision against him.
The appellant’s first point is that the plaintiff’s action was not commenced within a year after the date of the last item of his lien, and consequently no lien claimant could apjjear as defendant in the action, and assert his lien, although, when appearing, his lien was alive. The date of plaintiff’s last item was June 21, 1890. The complaint was filed, the notice of lis pendens filed for record, and the summons made out, June 20, 1891, though the latter was not delivered to the sheriff for service till August 14, 1891, and the summons was served on Corey, by publication, within sixty days thereafter. He filed an answer October 13, 1891. The date of Hammer’s last item was October 21, 1890, and he filed his answer July 6, 1891; so that when the action was commenced more than a year had elapsed since the date of plaintiff’s last item, and less than a year since the date of Hammer’s last item. That the plaintiff did not commence his action within the year did not go to the jurisdiction of the court. As soon as the summons was served'there was an action pending to enforce his lien, in which any lien claimant might present his claim of lien. That plaintiff’s action was not commenced within his year was matter of defense only; and certainly the claim of any defendant to a lien cannot be affected by any other party to the action succeeding or failing in his claim. Hammer having filed his answer within a year, and the court having acquired jurisdiction to determine liens, he was entitled to have his claim allowed, if established, although there was a defense to plaintiff’s claim.
*256The houses upon which respondent’s labor and material were furnished were constructed by one Burkey on Corey’s real estate, respondent doing the work and furnishing the material for Burkey. The lien is claimed under Laws 1889, ch. 200, § 5, on the ground that Corey had knowledge that the work was being done and material furnished, and failed to give the notice required by that section. At the trial the chief contention of fact was as to whether Corey had such knowledge or notice, so as to make it his duty to give the notice so required. He was a nonresident, and there is no suggestion in the evidence that he had personal knowledge or personal notice of it till after all the work was done, and the materials had been furnished. One Fairbanks, assuming to act as his agent, executed in his name, April 1, 1890, a written contract to convey the real estate to Burkey; and there is evidence that be-, tween Fairbanks and Burkey it was understood at the time that the latter would build on it. It is not shown that Corey knew of this understanding. It may be assumed that the notice to Fairbanks was sufficient,.provided he was the agent of Corey, with such authority that his knowledge that the work was being done would be, under the section referred to, the knowledge of the latter. The evidence indicates that lie was authorized to place the real estate in the hands of agents to sell it. It might be possible, on the evidence, to sustain a finding that he had authority to sell it himself. That is the utmost that the evidence suggests as to his authority in respect to the real estate prior to January, 1891. At that time, being informed that parties had “squatted” on the real estate, Corey wrote to Fairbanks that, as he knew no one in St. Paul, he should rely on him to care for it, or employ some competent man to do» it. Such a request, with such a purpose in view, might give the agent sufficient authority, so that his knowledge would be the knowledge of his principal, under section 5. But that was after the transactions herein involved. As that section is construed by this court, knowledge by the owner, and failure to serve notice, is evidence of his consent that his land be charged with the claims of persons doing work or furnishing material in constructing a building upon it. Wheaton v. Berg, 50 Minn. 525, (52 N. W. Rep. 926.) To make knowledge of an agent equivalent to knowledge of the owner, his authority must be such that he could bind his principal *257by consenting to so charge the land. An agent merely to sell has no such authority. In a memorandum filed, upon denying the motion for a new trial, the court below appears to think that evidence of the requisite authority in Fairbanks is found in a letter from Corey to Mr. Doty under date of March 27, 1891. Mr. Doty had written to him, “April 1,1890, you sold by your attorney, Joseph W. Fairbanks, to Neis Burkey,” this real estate, stating that Burkey partly erected four buildings on it,, and paid the laborers nothing, and asking how mueh, in cash, he will take for the lots, subject to the liens. In answer to this, Corey wrote: “Dr. J. W. Fairbanks still has charge of all my real estate in St. Paul, and I will forward your note, and ask him to reply toj it.” The court below construed this as an admission of Fairbanks’ authority back to April 1, 1890, and so far the court was correct. But what authority is thus admitted? Clearly, only the authority indicated in Doty’s letter, to wit, authority to sell the real estate.
The evidence was entirely insufficient to show Fairbanks’ authority such that his knowledge could be held the knowledge of Corey.
Order reversed.
Vanderburgh, J., absent.
(Opinion published 54 N. W. Hep. 1109.)
Application for reargument denied May 23, 1893.