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that "when any contract shall be made in writing between the proprietor or proprietors of land on the one part and any person or persons on the other part for erecting any house person who shall in pursuance of such contract furnish shall have a lien to secure the payment of the same," etc., extends only to contracts made with a proprietor of the land, and a mere contract for the conveyance of land to one of the parties on payment of the price by a fixed time, does not bring the case within the statute so that a lien may attach against the vendor.1

11. Tenants in Common.-Where one of several cotenants assumes to improve the common estate at his sole expense, the others need not protest or object in order to avoid liability to the mechanics or material-men. His share is liable for the whole improvements made at his instance.2

543; Walker v. Paine, 2 E. D. Smith (N. Y.) 662; Cox v. Broderick, 4 E. D. Smith (N. Y.) 721; 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; 1 E. D. Smith 652 n.; Kennedy v. Paine, 1 E. D. Smith (N. Y.) 651; Gay v. Brown, 1 E. D. Smith (N. Y.) 725. See Hart v. Wheeler, 1 Thomp. & C. (N.Y.) 403.

1. Conner v. Lewis, 16 Me. 268; McGinniss v. Purrington, 43 Conn. 143; see Thaxter v. Williams, 14 Pick. (Mass.) 49; Scales v. Griffin, 2 Doug. (Mich.) 54; Walker v. Burt, 57 Ga. 20; Huff v. Jolly, 41 Kan. 537.

P and D entered into a contract by which P, in consideration of certain advantages to his adjoining property and two hundred dollars to be afterwards paid in cash, agreed to convey a certain building lot to D, and D agreed to erect a dwelling house thereon; D to forfeit all claim if the contract was not fully performed by him. D began to erect the house, but after building the cellar wall abandoned it. Held, that a mason who had built the cellar wall under contract with D could not establish a lien, as a subcontractor, upon the lot against P. McGinniss v. Purrington, 43 Conn. 143.

One who performs labor on a build ing, under a contract with a person employed to erect the building by one to whom the owner of the land has agreed to convey it on the performance of certain conditions, and afterwards conveys it accordingly, has no lien on the building and land, to secure the payment of his wages, by virtue of Massachusetts Stat. 1851, ch. 343. Metcalf v. Hunnewell, 1 Gray (Mass.) 297.

Vendor's Consent to Improvements.Where an insurance company loaned the owner of a lot and uncompleted building money for the purpose of finishing the building and took from him a deed of trust conveying a fee, defeasible on the payment of the debt, and afterwards knowingly permitted the building to go on without giving notice that it would not be responsible therefor; under a statute declaring that "if the building be erected with the knowledge of the owner of the lands, or of any person having or claiming an interest therein, it shall be held to have been erected at the instance of such owner or person claiming an interest, and such interest so held or claimed shall be subject to the lien of the material-man or labor," etc.; it was held, that the interest in the property held by the insurance company was subject mechanics' lien for work done and materials furnished. Fuquay v. Stickney, 41 Cal. 583.

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Laches of Vendee.-A deed was acknowledged, and left for registration, but the tax was not paid on it: the vendor, who was insolvent, remained in possession of the lot conveyed, and employed a mechanic to build a house upon it. While the building was progressing, the vendees, aware of it, stood by and said nothing, the mechanic having no notice of their claim. Held, that the property was subject to the mechanics' lien. Phillips v. Clark, 4 Metc. (Ky.) 348.

2. Mellor v. Valentine, 3 Colo. 255. Where tenants in common make a partition and take separate possession of their respective portions and one of them contracts with a mechanic to erect a dwelling house on his part,

12. Trustees.-A mechanics' lien can be enforced for work done and materials furnished in the erection of a public building by order and contract of a trustee, where the statute gives a lien upon such buildings.1

13. Agents. The agent of the owner may subject the property of his principal to a mechanics' lien for labor done or materials furnished under contract, for building purposes, when it is shown that he had authority to make such contract. The contractor, with the owner for the erection of a building is so far the agent of the owner that he can bind the property by all contracts for materials and labor necessary to complete the building.3 But a special agent employed for a particular object only, and not connected with the subject of building, cannot bind a building by a mechanics' lien for materials furnished in its construction.4

which is built accordingly, the interest of the party so contracting is of such a nature as to make it subject of a lien under the mechanics' lien law, although the title to whole lot is in the cotenant. Otis v. Cusack, 43 Barb. (N. Y.) 546. 1. Board of Education v. Greenbaum & Sons, 39 Ill. 609; see Greenough 7. Nichols, 30 Vt. 768; Wilson v. Comm. of Huntingdon, 7 W. & S. (Pa.) 197.

A majority of the members of a religious society, including its trustees, believing that the necessary funds could be raised by voluntary contributions, voted to have improvements made to its church building, and appointed a committee to make a contract for and superintend the work; G, with knowledge that voluntary contributions were relied on to pay for the same, undertook to do the work for a certain sum, relying upon obtaining his pay through the agency of the society. No other arrangement was made for paying G for his services. Held, that Ġ, having performed the work, became entitled to enforce a lien upon the building. Gortemiller v. Rosengarn, 103 Ind. 414.

A mechanics' lien for work done or for materials furnished in the erection of a public school house cannot be acquired or enforced. Fatout v. Board of School Comm., 102 Ind. 223; Shattell v. Woodward, 17 Ind. 225, overruled.

2. Paulsen v. Manske, 126 Ill. 72; Moore v. Jackson, 49 Cal. 109; The James H. Prentice, 36 Fed. Rep. 777; Baxter v. Hutchings, 49 Ill. 116; McDonnell v. Dodge, 10 Wis. 106. See Redman v. Williamson, 2 Iowa 4SS; Woodward. American Exposition R. Co., 39 La. An. 566; Owens v. Northrup, 30 Wis. 482; Cornell 7. Barney, 94 N. Y. 394; Scales v. Paine, 13 Neb.

521; Copeland v. Kehoe, 67 Ala. 594; Paulsen v. Manske, 24 Ill. App. 95.

Where a tenant contracts with his landlord to build or to repair buildings for compensation to be made by the landlord, either in money or the occupation and use of the premises, the tenant is the landlord's agent, building or repairing for him, at his ultimate cost, and the building is liable to lien as in all other cases of building or repairing by contract. Hall v. Parker, 94 Pa. St. 109.

The mere fact of possession will not prove authority. Garrett v. Stevenson, 3 Gilm. (Ill.) 261; Steigleman v. McBride, 17 Ill. 300.

Mere knowledge by the agent of the owner that a laborer was working for the contractor does not amount to that consent which, under the act, would entitle a laborer to a lien on the building. Gray v. Walker, 16 S. Car. 143.

A petition for a mechanics' lien alleging that the son of a widow, who was the owner of a mill, contracted for machinery to place therein as well for himself as for the mother, with her knowledge and consent and as her agent, held to be good on demurrer. But his mere possession of the mill as agent or otherwise could not be evidence of authority to bind any interest other than his own. Baxter . Hutchings, 49 Ill. 116.

3. Morrison v. Hancock, 40 Mo. 561. 4. McDonnell v. Dodge, 10 Wis. 106. The fact that a person purchases a lot as the agent of another does not give him implied power to contract in behalf of the latter for the erection of a building thereon; and if he is furnished with funds as agent, and instructed to build a house with such funds, he will have no implied power to build

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14. Persons Acting as Wife's Agent.-Contracts for the improvement of the real estate of a married woman, by the repair of old or the erection of new buildings thereon, may be made by her in person, or by an agent appointed by her for that purpose.1 When a husband having general authority as agent of his wife. to do business for her enters into a contract for building material to erect a building on land owned by her, the material-man is entitled to a mechanics' lien on the premises.2

An agency to bind the wife may be inferred from the fact that the husband had been entrusted with the general management of her property.3

15. Owners by Estoppel.-When the owner of lands stands by and suffers credit to be given to another on the supposition that he owns the land and aids in creating a belief that such other person does own the land he cannot afterwards defeat a mechanics' lien by insisting that the land is his own.4

V. CONTRACTS.-In some of the States the lien which the law gives the mechanic or the material-man, for labor and materials bestowed or used in the construction of a building, does not depend on the contract of the parties for its existence. It is a

credit, and his mere possession of the premises will confer no power on him to bind anybody's interest but his own. Proctor v. Fows, 115 Ill. 138.

1. Vail v. Meyer, 71 Ind. 160; Nelson v. Cover, 47 Iowa 250; Geary v. Hennessy, 9 Ill. App. 17; Wendt v. Martin, 89 III. 139.

2. Scales v. Paine, 13 Neb. 521; Burdick v. Moon, 24 Iowa 418; Kidd v. Wilson, 23 Iowa 464.

Though the account be made out against the husband alone, if it be averred that the materials were furnished at the request of the husband as the agent of his wife, the lien upon property owned by her may be enforced against both. Kidd v. Wilson, 23 Iowa 464.

Where a married woman, owning a city lot, mortgaged it to raise money to improve it by the erection of a house thereon, the husband taking the money, and, with her knowledge and consent, erecting the building, employing another to plaster it, the necessary inference. follows that the husband was either her agent or a contractor to build the house, and in either case the statute gives the plasterer a right to a mechanics' lien, by recording the proper notice. Thompson v. Shepard, 85 Ind. 352.

3. Wheaton v. Trimble, 145 Mass. 345. See Price v. Seydel, 46 Iowa 696; Nelson v. Cover, 47 Iowa 250. 15 C. of L.-5

The agency of the husband to contract for lumber on the part of the wife will not be presumed from the marital relation alone, nor from the fact that the lumber was used by the husband in the erection of a house upon land of the wife. Miller v. Hollingsworth, 33 Iowa 224.

4. Higgins . Ferguson, 14 Ill. 269. See Welch v. Sherver, 93 Ill. 64; Rothgerber v. Dupuy, 64 Ill. 452.

If the holder of the legal title to land stands by and sees a contract made by the party in possession for work upon the same by a mechanic without disclosing his title or claim, he will be estopped from setting up his legal title to defeat the lien of the mechanic. Donaldson 7. Holmes, 23 Ill. 85.

Where plaintiff furnished materials for a building erected by defendants under a contract by them jointly entered into with him, the title to the land upon which it was built being then in a third party, and before the completion of the building one of the defendants transferred his interest to the others, and the title to the lot was thereupon conveyed to the latter,-the plaintiff was entitled to enforce a lien for the amount of his claim against the building and lot, and the defendants were estopped to deny title and ownership therein. Colman v. Goodnow, 36 Minn. 9.

5. McLaughlin v. Reinhart, 54 Me. 71; Frost v. Ilsley, 54 Me. 345, 351; 65

purely statutory lien. And the statutes usually presupposed a contract, express or implied, for labor or material to be done or furnished, which existing, the law affixes a lien to secure the payment of the mechanic or material-man, for what is done and furnished. In other States, if work be done or materials furnished, without a contract that they shall be put to the particular use of erecting, altering, or repairing a craft or building, no lien can be asserted on the building or vessel in which they may be placed.3

Ehler's Admr. v. Elder, 51 Miss. 495; Miner v. Moore, 53 Tex. 224; Gaty v. Casey, 15 Ill. 189; Hazard Pow. Co. v. Loomis, 2 Disney (Ohio) 544; Gilman v. Gard, 29 Ind. 291; Holmes v. Shands, 26 Miss. 639; 27 Miss. 40; Neilson v. Iowa E. R. Co., 51 Iowa 184; Wheeler v. Hall, 41 Wis. 447; Barnes v. Thompson, 2 Swan. (Tenn.) 313; Alley v. Lanier, 1 Coldw. (Tenn.) 540; Pierce v. Sweet, 33 Pa. St. 151.

1. Barnard v. McKenzie, 4 Colo. 251; McCay's Appeal, 37 Pa. St. 125; Sodini . Winter, 32 Md. 130; Freeman v. Cram, 3 N. Y. 305; McLaughlin v. Reinhart, 54 Md. 71; Childs v. Anderson, 128 Mass. 108; Frost v. Ilsley, 54 Me. 345, 351; Copeland v. Kehoe, 67 Ala. 394; Ehler's Admr. v. Elder, 51 Miss. 495; Dinkins v. Bowers, 49 Miss. 219; Chambersburgh Woolen Mfg. Co. v. Hazelet, 3 Brewst. (Pa.) 98.

2. McLaughlin v. Reinhart, 54 Md. 71; Sodini v. Winter, 32 Md. 130; Tritch v. Morton, 10 Colo. 337; Leddo v. Hughes, 15 Ill. 41; Roach v. Chapin, 27 Ill. 194; Bruce v. Berg, 8 Mo. App. 204; Willison v. Douglass, 66 Md. 99; Foerder v. Wesner, 56 Iowa 157.

In Illinois, in a proceeding for a mechanics' lien the law implies a contract to pay for the work when it shall be done, if other terms are not specified. Claycomb v. Cecil, 27 Ill. 497. See Austin v. Wohler, 5 Ill. App. 300.

In Kansas, where a person furnishes building material with the knowledge that it is to be used in the construction of a particular building, and sells it for that purpose; held, that he may procure a mechanics' lien on such building, without any more definite or specific contract or agreement that the building material shall be used in the construction of such building. Sturges v. Green, 27 Kan. 235.

In Mississippi, if without any special contract a party receive the labor or materials of another about his building, he is responsible to that person, and the

statute gives the right of lien in his favor. Holmes v. Shands, 26, Miss. 639. See Harrison v. Breiden, 8 Miss. 670.

In Maryland, the mechanics' lien law of Maryland contemplates a contract of purchase between the materialman and the contractor; and, while there is no contract, express or implied, between the former and the owner, yet the law provides a lien upon the building as a security for the material-man, in case the contractor fails to pay for the materials; and this does not affect the liability of the contractor on his contract of purchase. Sodini v. Winter, 52 Md. 130.

3. Choteau v. Thompson, 2 Ohio St. 114; Hatch v. Coleman, 29 Barb. (N. Y.) 201; Willard v. Magoon, 30 Mich. 273; Clark v. Raymond, 27 Mich. 456; Wagar v. Briscoe, 38 Mich. 587; Williams v. Uncompahgre Canal Co. (Colo.), 22 Pac. Rep. 806; Merchant v. Perez, 11 Tex. 20; Rogers v. Phillips, 8 Ark. 366; s. c., 47 Am. Dec. 727; Bennett v. Shackford, 11 Allen (Mass.) 444; Daniel v. Weaver, 5 Lea (Tenn.) 392; Taylor v. Huck, 65 Tex. 238; Dye v. Forbes, 34 Minn. 13; Sly v. Pattee, 58 N. H. 102; Sanderson v. Taft, 6 Gray (Mass.) 533; Parker v. Anthony, 4 Gray (Mass.) 289; Muldoon . Pitt, 54 N. Y. 269; Spaulding v. Thompson etc., 27 Conn. 573.

A contract to "do, perform and expend labor in the erection, alteration and repair" of a house at a certain rate by the day, is too indefinite to support a lien under Mass. St. 1852, ch. 343, § 1, for the labor of the contractor and his workmen, and if thus alleged in the petition, cannot be shown to have been more specific. Wilder v. French, 9 Gray (Mass.) 393.

Where a sealed written contract to erect a building for another was made with one who had no interest in land, the law will not imply that the real owner contracted to pay the builder, al

1. Statutes.-In Alabama, Arizona, California, Delaware, Florida, Georgia, Idaho, Indiana, Iowa,1 Louisiana, Maine, Mississippi,3 Missouri, New York, Nevada, New Mexico, Ohio, Oregon, Rhode Island, South Carolina, Texas, Virginia, Vermont, Washington and West Virginia, the materials or labor must in the case of principal contractors have been furnished by virtue of agreement with or consent of the owner of the building. And in New York, New Jersey, Indiana, Michigan, Kansas, Arkansas, Colorado, Florida, Louisiana, Virginia, Tennessee, and Wyoming, the contract must be made with the owner of the land.9

though such contract was made in pursuance of a fraudulent scheme between the owner and the one who contracted with the builder. Ellenwood v. Burgess, 144 Mass. 534.

In Arkansas, the mechanics' lien act gives no lien unless the materials be furnished or labor done under contract or agreement. Rogers v. Phillips, 8 Ark. 366; s. c., 47 Am. Dec. 519.

In Iowa, under §§ 2130 and 2136 of Miller's Code, a right to a lien on improvements can only exist by contract with the owner of the improvements. Lane v. Snow, 66 Iowa 544.

In Michigan, the statute prescribes certain contract relations and in proceedings under it to enforce a lien the existence and terms of the contract upon which the alleged lien is based must be distinctly and affirmatively proved. Willard v. Magoon, 30 Mich. 273.

District of Columbia.—In the absence of fraud, a mechanics' lien is enforceable, although the work done and materials furnished are not according to contract. Beha v. Ottenberg, 6 Mackey (D. C.) 348.

1. Lane v. Snow, 66 Iowa 544.

2. Kohn v. McHatton, 20 La. An. 485. 3. Shotwell v. Kilgore, 26 Miss. 125. But see Holmes v. Shands, 26 Miss. 639; Harrison v. Breeden, 8 Miss. 670; Where A makes a contract with B to build a house on his premises, and B purchases materials of C, the latter has no lien on the property of A for the value of the materials sold to B. Holmes v. Shands, 26 Miss. 639.

4. Hause v. Thompson, 36 Mo. 450; Hause v. Carroll, 37 Mo. 578.

5. Under N. Y. Laws 1880, ch. 143, a contractor or subcontractor cannot es

tablish a lien for work performed and material furnished, where there is no contract on the part of the owner or his agent for the work, even though the work performed and material fur

nished is within the knowledge and consent of the owner. Zeigler v. Galvin, 45 Hun 44.

A agreed to sell land to B and to complete buildings on the land, and then contracted with C to complete the buildings. C's work was done after the execution of the conveyance with A to B. although A's contract with C was made before. Held, that C's contract was not with the "owner" and that he could not enforce a lien. Smullen v. Hall, 13 Daly (N. Y.) 392.

But in Otis v. Dodd, 90 N. Y. 336, it was held under the mechanics' lien law for this State, excepting certain counties (ch. 489; Laws of 1873, as amended by ch. 233, Laws of 1875), that the simple consent of the owner of real estate to the making of any erections or improvements thereon, is sufficient to give one performing labor or furnishing materials therefor, and who has filed the prescribed notice, a lien upon the land; it is not essential that the owner himself should have contracted for the erections or improvements.

6. Choteau v. Thompson, 2 Ohio St. 114.

7. Merchant v. Perez, 11 Tex. 20. 8. Stimp. Am. Stat. L., § 1964; Garnett v. Berry, 3 Mo. App. 197.

One H, who had contracted with defendant to build the latter a house, applied to plaintiff to furnish materials and do work on the house, but afterwards, and before plaintiff had done any work or furnished any materials, defendant promised to pay him for the work and materials he might do or furnish; and the work and materials for which a lien is claimed were done and furnished on the faith of such promise. Held, that defendant is absolutely bound, as an original promisor, to pay plaintiff therefor. Willer v. Bergenthal, 50 Wis. 474.

9. See Stimp. Am. Stat., § 1964;

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