Brown v. . Ward

BaeNHill, J. Appellants, in their brief, discuss only the exceptions directed to the alleged error of the court below in granting the motion to dismiss as of nonsuit and in signing judgment thereon. All other exceptions are deemed to be abandoned. Rule 28: In re Beard, 202 N. C., 661, 163 S. E., 748. In asserting error in the judgment of nonsuit the plaintiffs pose this question: “Does the lease by its terms constitute the lessee an agent of the lessors for the purpose of improving the premises to the extent expressly provided in the lease ?” The question concedes that it is upon this theory, if at all, they are entitled to recover. The statute, C. S., 2433, is plain and unambiguous. “Every building built . . . shall be subject to a lien for the payment of all debts contracted for work done on the same, or materials furnished.” In order to create a lien in favor of a person who builds a house upon the land of another the circumstances must be such as to first create the relationship of debtor and creditor, and then it is for the debt that he has a lien. The lien does not exist without a contract. Wilkie v. Bray, 71 N. C., 205; Lester v. Houston, 101 N. C., 605; Boone v. Chatfield, 118 N. C., 916; Weathers v. Borders, 124 N. C., 610; Weathers v. Cox, 159 N. C., 575, 76 S. E., 7; Foundry Co. v. Aluminum Co., 172 N. C., 704, 90 S. E., 923; Honeycutt v. Kenilworth Development Co., 199 N. C., 373, 154 S. E., 628; Boykin v. Logan, 203 N. C., 196, 165 S. E., 680. “The law seems to be settled in this State that there must be a debt due from the owner of the property before there can be a lien. The debt is the principal, the basis, the foundation upon which the lien depends. The lien is but an incident, and cannot exist without the principal.” Baker v. Robbins, 119 N. C., 289; Bailey v. Rutjes, 86 N. C., 517; Boone v. Chatfield, supra. And a debt contracted is a debt agreed to be paid. Ball v. Paquin, 140 N. C., 83; Mfg. Co. v. Assurance Co., 161 N. C., 88, 86 S. E., 865; Weathers v. Borders, supra; Baker v. Robbins, supra; Wilkie v. Bray, supra. The debt must be such as would entitle the claimant to a personal judgment for the amount due. Weathers v. Borders, supra. Mere knowledge that work is being done or material furnished on one’s property does not enable the person furnishing the labor or material to *347 obtain a lien. It takes something more than knowledge that work is being done on the property to create a lien. Hence, plaintiffs have no oause of action unless Ward was an agent of Harris for the purpose of incurring obligations for labor and material used in the construction of the building in question. It is accepted law that the relationship of lessor and lessee is not that of principal and agent. The mere fact that Ward was lessee vested in him no authority to contract debts in behalf of or binding upon his lessors. In the absence of any. agreement between the parties there is no obligation on the part of the lessor to pay the lessee for improvements erected by the lessee upon the demised premises, though the improvements are such that by reason of their annexation to the freehold they become a part of the realty and cannot be moved by the lessee. 16 R. C. L., 794; Pomeroy v. Lambeth, 36 N. C., 65; 36 Am. Dec., 33; Critcher v. Watson, 146 N. C., 150, 125 A. S. R., 470; Kutter v. Smither, 2 Wall, 491, 17 L. Ed., 830. And, ordinarily, creditors of a tenant have no greater right to charge the land with the value of improvements made by the tenant than the tenant would have. 16 R. C. L., 795; Pomeroy v. Lambeth, supra. Unless the lessors “were originally liable by reason of a contract of some sort, they cannot be made so because of their having resumed possession of the premises, with its improvements, upon the surrender of their tenant.” Bailey v. Rutjes, supra; Critcher v. Watson, supra. Does the contract of lease, by its terms, vest Ward with authority to bind the lessor by his contract for labor and material furnished in the erection of the building? The answer is no. Under the terms of the contract the construction of the building was a part of the rental to be paid for the use of the premises- — a part to be paid in advance. Primarily the building was to be erected for the use and benefit of the tenant. Harris assumed no obligation in respect thereto. The property belonged to Harris subject to the terms of the lease. It was his privilege to reserve the right to approve the plans and specifications for new buildings to be erected on the premises by the lessee. In so doing he assumed no liability for the costs thereof. Plaintiffs had no contract with Harris. They did the work under contract with Ward with the understanding that it was to be charg'ed to him.- If they were unwilling to do the work and furnish the material upon his credit and intended to look to the security provided by statute, ordinary prudence required that they exercise that degree of diligence which would enable them to ascertain the status of the title to the land upon which the building was to be erected and to obtain the approval or *348 procurement of the owners. Their loss must be attributed to their failure so to do. The defendants Harris had leased the premises to Ward for five years and Ward had undertaken to have the improvements made which called for the use of the labor and material furnished by the plaintiffs. They were, therefore, absolutely without the power either to give or to withhold their sanction to its delivery and use and ought not to be required to pay for it, unless they knew, or had reason to believe, that the plaintiffs were looking to them for their pay and allowed them to proceed under that expectation without objection. The record is devoid of any evidence tending to show that plaintiffs knew the defendants Harris in the transaction or looked to them for pay or that said defendants permitted them to proceed under that expectation. Hence, there is no debt due by the defendants Harris to the plaintiff such as is necessary to support a claim of lien under the statute. The judgment below is Affirmed.