Prow

delivered the opinion of the Court.

This appeal is prosecuted from an order of the Court below, refusing to apply a certain amount of money in the hands of the Sheriff, collected on an execution, in favor of Rose v. Munie, to the payment of a mechanics’ lien.

By the record, it appears that Munie, for .the [174] purpose of * erecting a theater, mortgaged his leasehold interest in a certain lot in San Francisco, as well as the building to be erected thereon, to the respondent Rose, who afterwards foreclosed said mortgage, and caused the premises to be sold, to satisfy his debt. Prow, who now seeks to recover a portion of the money arising from said sale, was employed by Munie, in painting the scenery and ornamental parts of the- building. The record shows that he commenced work after the date of the execution of the mortgage from Munie to Rose, but prior to the recording of it.

It also appears that some time after he had commenced work said mortgage was recorded, and that he was acquainted with the fact.

*175 It is now contended that, under the provisions of the Mechanics’ Lien Law, inasmuch as the mortgage to Bose was not recorded until after the time when Prow commenced his…