Several questions arise in this case, upon the statement of facts agreed, by which it appears that the petitioner seeks to enforce the payment of a balance due to him upon a building contract, under the Rev. Sts. c. 117, giving to mechanics a lien in certain cases.

1. This being a contract by the husband and wife jointly, with the petitioner, it is objected that, as a feme covert, she cannot bind, herself by an executory contract, and therefore cannot bind her estate.

It is a well established rule of law, that a married woman cannot bind herself by an executory contract. And as the lien is created by statute, as incident to the contract, when there is no valid contract, there is no lien. Even where, under the old common law of Massachusetts, now sanctioned by statute, a married woman was permitted to alienate her separate estate without fine, by joining in a deed with her husband, it was held that when she had so joined in a deed, by which her interest in her estate was bound, yet she was not bound by the covenants. Colcord v. Swan, 7 Mass. 291.

Were the female respondent’s interest in the estate bcund by her contract, the whole estate might be sold (Rev. Sts. c. 117, § 20) to discharge a small lien, and a large surplus be *154converted into personal property and paid to the husband; and thus the estate of the wife would be defeated. It is insisted, as a case in point, that a married woman may, by joining in a deed with her husband, convey away her own estate, and that this building contract is the execution of the same power in another mode. It is true she may join in conveying her estate by deed; but it was from early times regarded as an exception to a general rule, and limited to the precise case. And since the rule has been sanctioned by statute, as a rule of positive law, it is under the same limitation, viz. that the wife shall not be bound by any covenant contained in such joint deed. Rev. Sts. c. 59, § 2.

But we think there is no objection to the petitioner’s discontinuing, against the wife, without costs, so as to have a judgment against the husband alone, if entitled to it. 7 Mass. ubi sup. Fitch v. Stevens, 2 Met. 505.

2. The next question is, whether the lien was dissolved by the lapse of six months after the last instalment became due by the contract, before this suit was commenced. Rev. Sts. c. 117, § 3. This must depend upon the terms of the contract. The suit was commenced on the 13th of December 1844.

The contract, after describing the work to be done, and the payments to be made, from time to time, as certain parts oí the work should be done, concludes thus: “ And the remaining sum of $430 upon the entire fulfilment of the contract, in all its parts, on or before the 1st of May next,” (1844.) Now, when the statute says “ due by the contract,” it must be understood to mean, due by the force and effect of the contract, taken all together. The last payment under this contract was not to be made absolutely on the 1st of May, but on the complete fulfilment and performance of the contract. This was contemplated to be on the 1st of May; but it might not be, and in fact was not. But it is insisted, that as the house was completed on the 10th of June, the last payment then became due ; and this was more than six months. But although it is stated that the house was completed on the. 10th of June, yet it does not follow that this was an entire *155fulfilment of the contract in all its parts, so that the money would necessarily be payable. On the contrary, the respondent denied that it was fulfilled, and that he was so liable to pay. " And the fact, that the referees made a deduction from the contract price, tends strongly to show that the contract was not fulfilled in all its parts; although, under their powers as arbitrators, they awarded that the respondent should accept it and pay for it, with such deduction.

We are then to consider the other part of this original agreement, made at the same time, and recorded with it, for the information of all persons concerned. This part of the original contract was, that if any difficulty should arise between the parties in the construction of the contract, or in the execution thereof, it should be left to the judgment and decision of referees. Such difficulty did arise, it was so referred, and the referees awarded, on the 14th of June, that the respondents should accept the house, &c. as and for the job contracted for, at a price somewhat less than the contract price, that is, with a deduction from the price, and pay for the same accordingly. This, being within the scope of their authority, fixed the amount and time of the last payment due by the contract as the 14th of June, and the suit, commenced on the 13th of December, was within six months from that time.

3. The remaining question is, what is the extent to which the petitioner’s lien, under this contract, reaches, and what right or interest in the estate he may''require to be sold, by force of the statute. The Rev. Sts. c. 117, § 26, explicitly declare, that “ if the person, who procures the work to be done, has an estate for life only, or any other estate less than a fee simple in the land on which the work is to be done, or if the land, at the time of recording the contract, is mortgaged, or under any other incumbrance," the person who procures the work to be done shall nevertheless be considered as the owner, for the purposes of this chapter, to the extent of his right and interest in the land, and the lien before provided for shall 1 ind his whole estate and interest therein.”

*156The estate which the husband had in the land of his wife, at the time the contract was made, (they then having no issue,) was a right to the rents and profits during their joint lives; that is, an estate for his own life, determinable by the death of the wife. But the possibility of having issue bora alive then existed, and that event would convert his estate into a tenancy by the curtesy initiate. Should the wife survive, the estate would be the same as before, and terminate with his life ; but should he survive, he would hold it for his own life; so that the tenancy by the curtesy initiate was a larger estate. 2 BI. Com. 127. It appears by the facts agreed, that since the filing of the petition, the respondents have had issue born alive; by means of which the husband’s interest has been enlarged to a tenancy by the curtesy initiate, and the question is, whether the lien extends to the estate thus enlarged.

What would have been the result, had the husband acquired a new estate by a new title, it is not necessary to inquire. Here the estate was enlarged, in pursuance of a possibility, which existed at the time the contract was made, and constituted part of its value; and in this respect operated like the termination of a lease, or the removal of an incumbrance. We are therefore of opinion that the lien of the petitioner-extends to the present interest of the husband, as tenant by the curtesy initiate, or an estate for his own life, whether he survive his wife or not.

Decree accordingly.