Ferdon v. Hendry Lumber Company

Buford, J. In this case bill was filed to foreclose a materialman’s lien. A demurrer was filed to the bill of complaint, the same was overruled and appeal was entered from the order overruling the demurrer. The bill of complaint shows upon its face that the lien is claimed upon property, the title to which is held by husband and wife in an estate by entireties. The right to enforce a lien for labor performed or material furnished against an estate by entireties is statutory *284 and one seeking to enforce such a lien must allege the existence of the statutory provisions under which such a lien may be acquired. In this case the bill of complaint does not allege the material facts which are necessary to the creation of the lien, as provided by Chapter 9296, Acts of 1923, Sec. 5360, C. G. L. 1927, in-that the bill fails to allege that the materials were furnished with the knowledge or assent of the husband and wife, or that such materials were furnished under a written contract with the husband and wife for the furnishing of the same. For the reason stated the order overruling the demurrer should be reversed and it is so ordered. Reversed. Terrell, C. J., and Whitfield, Elias and Brown, J. J., concur.