delivered the opinion of the court.

The vice of the argument of counsel for appellants is that it only reaches a part of the question raised by the demurrer *298to the petition. The legal principle propounded by counsel is indisputably correct. If articles of personal property are sold to a person, just as any other articles would be sold him on his general credit, to be used and treated and further disposed of at the pleasure of the buyer, such articles would not bo subject to a mechanic’s or material lien in favor of the vendor. But this pi’oposition does not meet, and cannot determine, the question presented by the petition to which appellant’s demurrer was interposed.

The petition alleges, amongst other averments, that, at the time the machinery was ordered, Massey represented to the petitioner that there was no lien of any kind upon the mill and outfit, aud lot upon which the same was situated, owned by Massey, and upon which he desired to make improvements to the amount of the order herein made and filled by petitioner; and that it was understood and agreed that Massey should execute a mortgage upon the machinery so purchased, and upon the lot upon which the same was located, in order to secure the indebtedness thereby incurred to petitioner.

Clearly, these averments of the petition show that the machinery was not sold, as mere personalty, on the general credit of Massey, to be used and dealt with at his pleasure. On the contrary, they show a sale of fixed machinery, to be added to a mill already erected and in operation, upon a certain lot, and for a particular purpose; and, on this state of facts, it must be held the vendor has a lien for the purchase-money. And the facts alleged show, further, that Massey represented the mill and lot as free from incumbrance, and that he agreed to execute a mortgage to secure the payment of the price of this machinery; whereas, in fact, the mill was already under mortgage to the amount of about $13,000; and, whereas, Massey refused to execute the mortgage to appellant, as agreed, after he obtained possession of the property so sold him by petitioner.

These facts, we say, do not militate against the correctness *299of the views we entertain. Bather, they greatly strengthen them. The mortgage agreed to be given was but security, additional to or in lieu of the lien .the petitioner already had, and in no way injuriously affected that lien, seeing Massey', as shown in the petition, was guilty of gross misrepresentation and fraud in obtaining possession of the property; and seeing, too, that he utterly refused to give the mortgage as agreed. On the whole case, the judgment below was right.

Affirmed.