Honeycutt v. . Kenilworth Development Co.

BbogdeN, J. Tbe particular point presented by tbis appeal is wbetber tbe plaintiffs are entitled to a lien upon lot No. 7. Tbe defendant, Kenilworth Development Company, owned lot No. 7, but tbe record does not disclose any contract or agreement whatever between said Development Company and West and Hazelrigg who undertook to build a bouse thereon. In other words, West and Hazel-rigg, through mistake, purchased building material and commenced tbe erection of a bouse on a lot which they did not own, and, therefore, there existed no contractual relation between West and Hazelrigg and tbe defendant Development Company. Tbe plaintiffs furnished material for said building to West and Hazelrigg, and they were also ignorant of tbe mistake in tbe ownership of tbe lot. Tbe lien law of tbis State is C. S., chapter 49. Tbe statute gives a lien upon “every' building . . . together with tbe necessary lot on which such building is situated, etc.” But neither the statute nor tbe decisions construing it, permit a lien to be filed on a lot upon which a third person has “squatted” or undertaken to erect a building without title thereto and without a contract or agreement express or implied with tbe owner thereof. Weir v. Page, 109 N. C., 220, 13 S. E., 773; Nicholson v. Nichols, 115 N. C., 200, 20 S. E., 294; Weathers v. Cox, 159 N. C., 575, 76 S. E., 7; Brick Co. v. Pulley, 168 N. C., 371, 84 S. E., 513; Rose v. Davis, 188 N. C., 355, 124 S. E., 576; Lumber Co. v. Motor Co., 192 N. C., 377, 135 S. E., 115. Thus in Foundry Co. v. Aluminum Co., 172 N. C., 704, tbis Court said: “Tbe lien for labor done and materials furnished is given by statute to enforce the payment of a debt, and tbe general principle underlying tbe lien laws is tbat tbe relation of debtor and creditor must exist and tbat there can be no lien without a debt.” Tbe question of law is discussed in a note appearing in 3 North Carolina Law Review, p. 62 et seq. In tbat article it is stated tbat tbe basis for establishing tbe relationship of creditor and debtor between tbe owner and materialman applies “where tbe principal contractor *376 has (1) a contract with the owner to improve his land, or (2) where the owner has consented to such improvements.” In the case at bar the evidence does not disclose that West and Hazel-rigg had any contract with the Kenilworth Development Company for building said house or that the Development Company procured or consented to the erection of a. dwelling upon lot No. 7. The lien law in this State is exclusively statutory and no warrant of law appears justifying the enforcement of liens upon lot No. 7 upon the facts as now presented. We therefore hold that the judgment of nonsuit was properly entered. Affirmed.