Hillburn v. O'Barr

By the Court. Benning, J. delivering the opinion. The time when the work was to be paid for, was a question for the Jury. And there was evidence from which the Jury [593] might have inferred it to have been, either the time when the work was completed, the time when the note was given, or the time when the note fell due. [1.] Therefore, if the Court had told the Jury that this time was the time when the work was completed, the Court would have expressed its opinion on matter of fact. And that is a thing which the Court is forbidden to do. (Cobb’s Dig. 462.) So much for the plaintiff’s first point. The Court charged, “ that Hillburn being a partner, the lien of plaintiff attached on his interest; and that the notice recorded was sufficient to cover that interest.” Was this charge right ? Why not? May not one joint tenant bind his interest by contract ? No doubt he may. Therefore, if one joint tenant employ a carpenter to build a house on the land held in joint tenancy, he subjects his interest in the land to the chance of having fastened upon it the carpenter’s lien. (Cobb’s Dig. 555.) Hillburn did this. And O’Barr, the carpenter employed by Hillburn, entered a claim of lien, which was expressed to be against “ the house and premises on which it is erected, of George S. Black, Lemuel J. Hillburn, W. T. Cothran and James R. Powell.” Was this such a claim of lien as bound Hillburn’s interest? [2.] Admit that this is a claim of lien against the interest of all the joint owners; yet, what law is there that says, if a man’s claim exceed his right, not the excess of the claim, merely, but the whole of the claim, is void. The reverse is, in general, true. And no authority is cited to show this case an exception to the general rule. Ve think, therefore, that this charge of the Court was rigl 1 it if it was, then it is clear that the Court was right in the disposition which it made of the other three of the plaintiff s points. [594] So far as his interest was concerned, Hillburn was an. ■“ original contractor” with O’Barr.