be passed by mortgage may subject the property upon which a building is erected to a mechanics' lien.1 1. Consent of Owner. The estate of any owner cannot be subject to a lien for a building erected by another person unless it be done by the consent of the owner.2 If the owner who stands by purchaser of the lots for his own benefit, the vendor is not the owner of the building, although the legal title to the lots has not yet been actually transferred, and a claimant cannot have a lien against him. Gay v. Brown, 1 E. D. Smith (N. Y.) 725. Trespassers.-A contract made by a mechanic with a person in possession of land as a mere intruder, to erect a building thereon, does not create a lien on the land and the building erected in pursuance of such contract as against the owner of the land. Thaxter v. Williams, 14 Pick. (Mass.) 49; Ogg v. Tate. 52 Ind. 159. Tenant at Sufferance. If labor and materials are furnished to a party in possession of a lot as a mere tenant at sufferance, with which to enable the occupant to build a house thereon, with knowledge that he is not the owner, and the material and labor and advances are charged to such occupant alone, the owner of the property not directing or knowing of the improvement until after its completion, the latter will not be liable for the price, nor will his property be subject to any lien therefor. Proctor v. Tows. 115 III. 138. 1. Montandon v. Deas, 14 Ala. 33; Benjamin v. Wilson, 34 Minn. 517. Estates Less than Fee.-A person holding an estate less than the fee is the "owner" only to the extent of his interest, and cannot by his contract for work to be done or materials to be furnished create a lien against the property thereby improved to any greater extent than his right therein. McCarty v. Carter, 49 Ill. 53. House Erected on the Land of a Stranger by Mistake.-Parties who furnished materials for a dwelling house to be constructed upon a certain lot numbered 5, upon which another, supposing the house was being built as contemplated, took a mortgage, where, by mistake, the house was erected upon the adjoining lot 6, the property of a stranger, as against the mortgagee are not entitled to a lien either upon said lot 5 or lot 6, which the mortgagee upon discovering the error in location had purchased. Smith v. Barnes, 38 Minn. 240. 2. National Bank of the Metropolis v. Sprague, 20 N. J. Eq. 159; Galbreath v. Davidson, 25 Ark. 490; Wheeler v. Hall, 41 Wis. 447; Conklin v. Bauer, 62 N. Y. 620; Wheeler v. Scofield, 67 N. Y. 311; Burkitt v. Harper, 79 N. Y. 273; Hackett v. Badeau, 63 N. Y. 476; Schuyler v. Hayward, 67 N. Y. 253; Brown v. Cowan, 110 Pa. St. 588; Broman v. Young, 35 Hun (N. Y.) 173; Jersey Co. v. Davidson, 29 N. J. L. 415; Underhill v. Corwin, 15 Ill. 556; Voorhees v. Steamboat Eureka, 14 Mo. 56; Moore v. Jackson, 49 Cal. 109; Nellis v. Bellinger, 13 N. Y. Supr. Ct. 560; Stevens v. Lincoln, 114 Mass. 476; Leismann v. Lovely, 45 Wis. 420. A new contractor cannot be substituted to rights and liabilities of old contractor without consent of owner. Dingley v. Greene, 54 Cal. 333, 338. In New Jersey, the consent must be in writing. National Bank of the Metropolis v. Sprague, 20 N. J. Eq. 159. Wisconsin. The mere fact that the owner of the premises receives a bill for repairs and retains it for a long time will not warrant the inference of an assent to it or an acknowledgment of liability. Engfer v. Roemer, 71 Wis. 11. Where one is employed to work for a firm in the erection of a building, and continues to work under the direction of the partners, or one of them, supposing himself to be engaged during the whole time in the service of the firm, and having no intimation to the contrary, the fact that a part of his labor was employed in the preparation of materials really belonging to one partner, some of which were not ultimately used for any partnership purpose, will not relieve the firm from liability to him for the whole of such labor, nor prevent his having a lien on the building for the whole amount. Spruhen v. Stout, 52 Wis. 517. Presumption of Ownership.-A vessel, while being built, is presumed to be owned by the builders. Phillips v. Wright, 5 Sandf. (N. Y.) 342. and sees work done for another on his land, without disclosing his interest it is subject to the mechanics' lien.1 2. Lessee.-A lessee has sufficient interest in the land to subject it to a mechanics' lien. See LEASEHOLD ESTATES, supra. 3. Married Women.-A married woman's power to contract for improvements as well as repairs to her real estate is inseparably incident to her right to take and hold real estate for her own separate use; and a mechanics' lien filed against her separate estate for work done and materials furnished in and about a building erected for her is valid.3 When a married woman authorizes her husband to act for her, and as her agent to contract for the building of a house upon her separate real estate, the law gives the mechanic a lien thereon, though she may not have intended to charge the property therewith. See ESTATES OF MARRIED WOMEN, infra. 1. Donaldson v. Holmes, 23 Ill. 85. 2. Gaskill v. Trainer, 3 Cal. 334; McGreary v. Osborne, 9 Cal. 119; Barber v. Reynolds, 33 Cal. 497; Johnson v. Dewey, 36 Cal. 623; Hooker v. McGlone, 42 Conn. 95; Montandon v. Deas, 14 Ala. 33; Evans v. Young, 10 Colo. 316; McElwaine v. Brown (Pa.), 11 Atl. Rep. 453; Otis v. Dodd, 90 N. Y. 336; Burkitt v. Harper, 79 N. Y. 273; Anshutz v. McClelland, 5 Watts (Pa.) 487; Cornell v. Barney, 94 N. Y. 394; Currier v. Cummings, 40 N. J. Eq. 145; Daniel v. Weaver, 5 Lea (Tenn.) 392; Thomas v. Smith, 42 Pa. St. 68; Koenig v. Mueller, 39 Mo. 165; Collins v. Mott, 45 Mo. 100; Lynam v. King, 9 Ind. 3; Littlejohn v. Millirons, 7 Ind. 125; Reed v. Boyd, 84 Ill. 66; Dobschultz v. Holliday, 82 Ill. 371; Hopper v. Childs, 43 Pa. St. 310; Leiby v. Wilson, 40 Pa. St. 63; Mills 7. Mathews, 7 Md. 315; Alley v. Trainer, 1 Coldw. (Tenn.) 540. 3. Appeal of the Germania Savings Bank, 95 Pa. St. 329: Kuhns v. Turney, 87 Pa. St. 497; Woodward v. Wilson, 68 Pa. St. 208; Dearie v. Martin, 78 Pa. St. 55; Finley's Appeal, 67 Pa. St. 453; Barto's Appeal, 55 Pa. St. 386; Ex parte Schmidt, 52 Ala. 256; Vail. Meyer, 71 Ind. 160; Kantrowitz v. Prather, 31 Ind. 92; Schmidt v. Joseph, 65 Ala. 475; Wheaton v. Trimble, 145 Mass. 345; Machir v. Burroughs, 14 Ohio St. 519; Charleston etc. Co. v. Brockmyer, 18 W. Va. 586; Carpenter v. Leonard, 5 Minn. 155; Wright v. Blackwood & Frazier, 57 Tex. 644; Bliss v. Patten, 5 R. I. 376; Woodburn v. Gifford, 66 Ill. 285; Allen v. Graham, 12 Phila. (Pa.) 176; Haupt man v. Catlin, 20 N. Y. 247; Shilling v. Templeton, 66 Ind. 581, 587; Greenleaf v. Beebe, So Ill. 520; Flannery v. Rohrmayer, 46 Conn. 558; Miller v. Hollingsworth, 33 Iowa 224; Husted v. Mothes, 77 N. Y. 388; Edwards v. Edwards, 24 Ohio St. 402; Johnson v. Tutewiler, 35 Ind. 353; Littlejohn v. Millirons, 7 Ind. 125. Compare Rogers v. Phillips, 8 Ark. 366; s. c., 47 Am. Dec. 727; Sexton v. Alberti, io Lea (Tenn.) 452; Selph v. Howland, 23 Miss. 264; Webster v. Metropolitan Wash. Mach. Co., 29 Ind. 453; Robinson v. Huffman, 15 B. Mon. (Ky.) 80; Fetter v. Wilson, 12 B. Mon. (Ky.) 91; Oneil v. Percival, 20 Fla. 937; Sibley v. Casey, 6 Mo. 164; Johnson v. Parker, 27 N. J. L. 239; Kerby v. Tead, 13 Metc. (Mass.) 149. A married woman, unless restrained by the terms of the instrument of settlement, may, by her contract, and without the consent of trustees, in whom the legal title may be vested, charge her separate estate, at least to the extent of the rents, issues and profits thereof, with the cost of reasonable repairs and improvements for the benefit of the estate; and, to that extent, a mechanics' lien may attach under the statute. Machir v. Burroughs, 14 Ohio St. 519. In Tennessee, a wife can make no contracts; she cannot create a mechanics' lien on her lands held in absolute right, and not to her separate use; and this, although her attempted contract be with the knowledge and approval of her husband. O'Malley v. Coughlin, 3 Tenn. Ch. 431. 4. Jones v. Pothast, 72 Ind. 158, over 4. Minors and Others.-Contracts made with a minor for the improvement of his property are not binding and the contractor can claim no lien therefor against the property. The fact that an infant holds himself out as being of full age is immaterial. The legislature may, however, subject the property of minors to this lien, as where "owners" of property are defined to be "every person including all cestuis que trust," etc., not except such as may be minors over the age of eighteen years.3 A surety or guarantor has by statute no right to a mechanics' lien on the house of his principal for materials furnished by the guarantee.4 5. Administrators.—An administrator cannot, by a contract with a builder, bind the estate of his intestate to pay for work done or materials furnished in erecting a house upon the land of such intestate. But the house, built under such a contract, may be subjected to mechanics' lien, and sold to satisfy the same,5 6. Guardians. A guardian cannot without authority from a competent court, build a house upon the land of his ward and charge the expense upon the ward or create a lien upon the property for labor and materials in favor of the mechanics employed. (a) Ratification.-Ratification by an adult of a contract made by him when a minor can be inferred only from free and voluntary acts or words.7 ruling Dame v. Coffman, 58 Ind. 345; Vail v. Meyer, 71 Ind. 160; Lindley v. Cross, 31 Ind. 106; Karatrowitz v. Prather, 31 Ind. 92. If the materials were furnished and used in the improvement of her property, and by her direction or with her knowledge or consent, and were reasonably necessary, and there was no agreement that her property should not be liable therefor, the law will give a lien thereon for the value of the materials, her promise to pay being implied. Einstein v. Jamison, 95 Pa. St. 403. 1. McCarty v. Carter, 49 Ill. 53; Price v. Jennings, 62 Ind. 111. A party performing work, or furnishing materials, for the improvement of property, must ascertain whether the party with whom he is contracting is a minor or not, and if such contract is with one who has not attained his majority, it is not obligatory upon him and the lien of the contractor fails. McCarty v. Carter, 49 Ill. 53. 2. Price v. Jennings, 62 Ind. 111. 3. Phil. Mech. L., § 108; Tucker v. Gest, 46 Mo. 339. 4. Ruggles 7. Blank, 15 Ill. App. 436. See Hartman v. Berry, 56 Mo. 487. A became surety on a contractor's bond, one condition of which was an indemnity against all liens. A afterwards became a subcontractor. Held, that he could not maintain a lien against the premises. Given v. German Evangelical Reformed Church, 15 Phila. (Pa.) 300. 5. Weathersby v. Sinclair, 43 Miss. 189. 6. Copley v. O'Neil, 57 Barb. (N. Y.) 299; Hassard v. Rowe, 11 Barb. (N.Y.) 22; 6 Paige (N.Y.) 390. See Guy v. Du Uprey, 16 Cal. 196; Payne v. Stone, 15 Miss. 367. Although a guardian without competent authority cannot, by a mechanics' lien, bind the property of his infant ward by erecting a house thereon. Copley v. O'Neil, 57 Barb. (N. Y.) 299. Yet the builder is not prevented from securing his remedy in equity. Miller v. Hollingsworth, 33 Iowa 244. See Guy v. Du Uprey, 16 Cal. 196. 7. The receipt of rents after the minor becomes of age, from the property so improved does not amount to a ratification so as to operate as a lien against his property. McCarty v. Carter, 49 Ill. 53. In this case JUSTICE LAWRENCE said: "If we were to hold that the mere receipt of rents amounted to a ratification, we should be taking from the minor the protection which the law 7. Mortgagor. Where a mortgage has been foreclosed and a notice of such sale published the mortgagor cannot subject the property to a mechanics' lien.1 8. Mortgagee. A mortgagee has been held not such an owner as to entitle him to subject the property to a mechanics' lien.2 9. Vendee. A vendee holding possession of land under a contract of purchase from the vendor has sufficient ownership in the property to create a lien for materials furnished and used in the construction of a building thereon.3 If a person enters into possession and makes repairs with the consent of the owner under an agreement to pay for such repairs and to purchase the property the mechanics who furnish the materials and do the work, designs to give him, for the builder might safely assume, the minor would continue in the possession of his own property, and thus, by ratification, create a lien which the statute had not given when the contract was made. The builder might thus make what contract he could with the minor under the assurance that though the contract was not binding and the statute gave him no lien, one would nevertheless be worked out for him by a necessary ratification." 1. Davis v. Connecticut Mut. Life Ins. Co., 84 Ill. 508. 2. Tompkins v. Horton, 25 N. J. Eq. 284. See Cox v. Roderick, 4 E. D. Smith (N. Y.) 721; Broman v. Young, 35 Hun (N. Y.) 173. 3. Stockwell v. Carpenter, 27 Iowa 119; see Laud v. Muirhead, 31 Miss. 89; McDermott v. Palmer, 11 Barb. (N. Y.) 9; Gray v. Brown, 1 E. D. Smith (N Y.) 725; Henderson v. Connelly, 23 Ill. App. 601; Fowler v. Bailey, 14 Wis. 125; Chicago Lumber Co. v. Osborn, 40 Kan. 168; King v. Smith (Minn.), 44 N. W. Rep. 65; Boyd v. Blake (Minn.), 43 N. W. Rep. 485; Gable v. Preachers' Fund Soc., 59 Md. 455. But see Callaway v. Freeman, 29 Ga. 408; Loring v. Flora, 24 Ark. 151. When vendee under contract of sale erects a building, the interest of vendor is not bound. Worden v. Hammond, 37 Cal. 61. A party who, having verbally contracted for the purchase of land, proceeds to erect buildings upon it, can subject the land to a mechanics' lien only to the extent of his own interest therein. Laud v. Muirhead, 31 Miss. 89. A person employed to erect a building under contract that the owner of the land would convey it to him after its completion will not constitute sufficient ownership to create a mechanics' lien in favor of a third party performing labor on the building. Metcalf v. Hunnewell, Gray (Mass.) 297; Gray v. Carleton, 35 Me. 481. In Callaway v. Freeman, 29 Ga. 408, it is held that a mechanics' lien is not good against the land where his employers hold only under a contract to purchase, which was subsequently rescinded for nonpayment by them. Where a mechanic, in pursuance of a contract made with a person having a covenant for the conveyance of land, furnished materials and erected a build ing on the land, and afterwards such covenantee received a deed of the land but at the same time mortgaged it to a third person, who advanced the purchase money; it was held that as the covenantee had but an instantaneous seisin, no lien attached upon the land and building in favor of the mechanic for the labor and materials furnished by him. Thaxter v. Williams, 14 Pick. (Mass.) 49. A contract between A and B, for B to buy and A to sell and convey to him land owned by A, does not subject the estate to a mechanics' lien under Massachusetts Gen. Sts., ch. 150, in favor of a person who by B's employment performs labor in erecting a building which B proceeds to put on the land, although B afterwards takes a conveyance of the land from A in pursuance of the contract and A had notice of B's intention to build and knew of the progress of the building and never made objection. Hayes v. Fessenden, 106 Mass. 228. Land Occupied by Homesteader.Where a dwelling house is situated upon government land, which is occupied by the debtor as a homestead under the United States homestead act, and the house is built upon a solid stone can enforce a lien on the premises for their labor and materials even if the person who makes the repairs does not effect a purchase, the lien will not, as against bona fide purchasers, attach to property that has been transferred to them before the filing of notice.2 (a) Vendee of Purchaser.-A mechanics' lien attaches to the building or improvement erected with the materials furnished; but does not follow the materials into the hands of a vendee of the purchaser, and attach to a building he may use them to erect.3 10. Vendor. A vendor under contract to sell and make advances to aid the vendee to erect a building upon the premises is not liable as owner where the statute confines the lien to such interest in the premises as "belongs to the person who caused such building to be constructed."4 So a statute which provides foundation, and is permanently attached to the soil, and the patent for the land has not yet been issued, and the debtor is not entitled to receive any patent; held, that a lien for building materials used in the construction of such house cannot be procured upon either the house or the land. Kansas Lumber Co. v. Jones, 32 Kan. 195. But see Gulledge v. Preddy, 32 Ark. 433. Proof of Ownership.-On trial of an action to enforce mechanics' lien. testimony of the defendant, "I am the owner of the last half of the southeast quarter," etc., "The barn is located on the northwest corner of this tract," in connection with evidence of his possession, his contract for having the barn built, his superintendence of the work, and his boarding the laborers, was prima facie proof of his ownership, although given in the present tense. Merritt v. Pearson, 76 Ind. 44. 1. Moore v. Jackson, 49 Cal. 109; Hili v. Gill, 40 Minn. 441. Where the person in possession under a contract to purchase continues the erection of the houses after failure to purchase, without opposition from the owner of the land, he may be considered as having such an interest as will enable him to waive a strict compliance with the contract on the mechanic's part. Jodd v. Duncan, 9 Mo. App. 417. 2. Sisson v. Holcomb, 58 Mch. 634. See Dunphy v. Riddle, 86 Ill. 22. 3. Heaton v. Horr, 42 Iowa 187. Compare King v. Smith (Minn.), 44 N. W. Rep. 65. 4. Dugan v. Brophy, 55 How. (N. Y.) Pr. 121; Burbridge v. Marcy, 54 How. (N. Y.) 466; Kennedy v. Paine, 1 E. D. Smith (N. Y.) 651; Gay v. Brown, 1 E. D. Smith (N. Y.) 725; Hallahan v. Herbert, 4 Daly (N. Y.) 209; s. c., II Abb. Pr. (N. Y.) N. S. 326; Loone v. Hogan, 9 N. Y. 435; s. c., 2 E. D. Smith (N. Y.) 681; Miller v. Clark, 2 E. D. Smith, (N. Y.) 543; Walker v. Paine, 2 E. D. Smith (N. Y.) 662; Littleton Sav. Bank v. Osceola Land Co., 76 Iowa 660; Cox v. Broderick, 4 E. D. Smith (N. Y.) 721. See Johnson v. Pike, 35 Me. 291; Thaxter v. Williams, 14 Pick. (Mass.) 49. When the vendee, under contract of sale, erects a building, interest of vendor is not bound. Worden v. Hammond, 37 Cal. 61. Where the owner of land gives a bond for a deed to a purchaser, who procures a building to be erected on it, the mechanics' lien attaches upon the purchaser's interest only, and the vendor cannot be compelled to part with his title until he receives full payment of his purchase money. Hickox v. Greenwood, 94 Ill. 266. In Illinois, where it is agreed in a contract of sale that the vendee shall build upon the premises, and that the vendor shall advance a part of the money for building, a builder is entitled to a mechanics' lien. notwithstanding the forfeiture of the vendee's title by failure to pay the purchase money instalments provided for in the contract. Henderson v. Connelly, 123 Ill. 98. In New York, a vendor who has agreed to advance a sum of money to the vendee, in instalments, for the erection of a building on the lot, to be secured by bond and mortgage upon the premises, on the completion of the building, when a conveyance is to be executed, is not the "owner," within the meaning of the mechanics' lien law. Miller v. Clark, 2 E. D. Smith (N. Y.) |