Wadsworth v. Hodge

SOMERVILLE, J. -1. The first question raised by the rulings of the court on the plaintiff’s demurrer to the defendant’s pleas is, whether a married woman can bind her separate estate by a mechanic’s lien, through a mere oral contract, and without the assent or concurrence of her husband expressed in writing. — 503 — The plaintiff in the present case is an original contractor, and furnished certain building materials, consisting of lumber, shingles and other articles, which were used, in the early part of the year 1888, to construct a house on land owned by the defendant, Mrs. Hodge. The defendant insists that, under the law as it now stands, a married woman can not create a mechanic’s lien on her property, unless she contracts in writing, and by the written consent of the husband, in accordance with the requirement of section 2346 of the Code (1886) governing the general personal contracts of the wife. This section is a part of the new married woman’s law of February 28, 1887, and is in the following words: “The wife has full legal capacity to contract in writing as if she were sole, with the assent or concurrence of her husband expressed in writing.” — Code, 1886, § 2346. ■ The statute governing the liens of mechanics and material-men creates a lien in favor of every mechanic, or other person, for work or labor done, or materials furnished, in constructing or repairing any building on land, “under or by virtue of any contract with the owner or proprietor thereof, or his agent, trustee, contractor, or sub-contractor,” upon complying with certain prescribed provisions. — Code, 1886, §§ 3018 et seq. It is further declared, that “every person, including married ivomen and cestuis que trust, for whose use, benefit and enjoyment any building or improvement shall be made, is embraced within the words ‘owner or proprietor,’ as used in this chapter.” — Code, 1886, § 3046. The statute on the subject of mechanic’s liens, as embraced in sections 3018 to 3048, is a complete system in itself. The clear legislative intention is, to require no written contract to create such a lien. An oral contract is obviously all that is necessary, provided the labor done, or materials furnished, are brought within the terms of the statute, evidenced only by “a statement in writing, verified by the oath of the claimant, or some other person having knowledge of the facts, containing a just and true account of the demand secured by the lien, after all just credits have been given,” which must be filed with the judge of probate within a prescribed time. Code, § 3022. The lien is created rather by the law, than by the contract of the parties. It is analogous to the vendor’s lien, and is based upon a like reason — that it is unconscionable for a vendee to retain a vendor’s property and not pay the stipulated price for it. It can scarcely be maintained — 504 — on any sound principle, that a married woman could not bind land by a vendor's lien for the purchase-money, without the written assent or concurrence of her husband.—Ramage v. Towles, 85 Ala. 588; Crampton v. Prince, 83 Ala. 246; 3 Amer. St. Rep. 718. The enforcement of such a lien is in the nature of a proceeding in rem, rather than one in personam, especially as against the estates of married women. There is no more reason why a feme sole, who is brought within the terms of the statute, should enjoy the benefit of a mechanic’s labor or materials without paying for them, than one sui juris should perpetrate a like injustice. And so it has uniformly been held in this State since the enactment of the mechanic’s lien law. In Ex parte Schmidt, 62 Ala. 252, it was decided that a married woman, by the contract of herself, or her husband, as agent or trustee, acting in her behalf, could create a mechanic’s lien on her separate estate, although she was not capacitated to contract generally, and, in fact, was empowered by statute to bind her separate estate only for “articles of comfort and support of the household,” suitable to the degree and condition in life of the family, and for which the husband would be responsible at common law. — Code, 1876, § 2711. This ruling was followed in Schmidt v. Joseph, 65 Ala. 476. These decisions construed section 3460 of the Code of 1876, which is the same in substance with section 3046 of the present Code, as expressly authorizing married women, eo nomine, to contract for a mechanic’s or material-man’s lien, on the same terms, and in the same mode as any other person sui juris may do. The Code of Missouri contains a statute, of which the Alabama mechanic’s lien law was originally a substantial copy. Section 3192 of that Code is the same in substance with section 3046 of the Alabama Code of 1886, with the exception, that the words “owner or proprietor” are there made to include, not only married women, but minors under eighteen years of age. — Missouri Code, 1879, § 3192. The-Supreme Court of Missouri has repeatedly construed that section as authorizing married women, otherwise laboring under disabilities of coverture, to make oral contracts binding their separate estates by a mechanic’s lien, or lien for building materials, furnished to construct improvements on land owned by her.—Ambrose Man. Co. v. Gapen, 22 Mo. App. 397; Murphy v. Murphy, 1 Ib. 600. In New York, where a general statute gave a mechanic’s — 505 — lien against all owners of land who should become parties to certain contracts for labor or materials, it was held to embrace married women as well as others. It was observed, that “ there was no exception in terms in favor of married women, and there is none in the nature of the case, or in reason, policy or convenience.”—Hauptman v. Catlin, 2 N. Y. 247. See, also, Loonie v. Hogan, 61 Amer. Dec. 693, note. There are decisions to the contrary, holding that a mechanic’s lien will not attach to a married woman’s separate estate under a contract made with her. But these decisions rest on the fact, that the .word “owner or proprietor,” as used in the particular law construed, could not be made to embrace a married woman by mere construction, as that would authorize a personal judgment against her by the terms of the statute.—O'Neil v. Percival (20 Fla. 937), 51 Amer. Rep. 634; Rogers v. Phillips (8 Ark. 366), 47 Amer. Dec. 727. The Alabama statute, as we have said, expressly declares, that married women shall be embraced in the words “owner or proprietor,” as used in the chapter establishing and regulating the enforcement of the liens of mechanics and material-men. Our conclusion is, that section 2346 of the Code has reference only to the general contracts of married women other than those’ coming within the influence of the law regulating mechanic’s liens and the liens of material-men; and that the verbal contract of a married woman, through herself or her authorized agent, is sufficient to create a lien for labor done or materials furnished for the improvement of her realty, under the provisions of sections 3018-3048 of the present Code. The plea of coverture, in such cases, can go no further, at most, than to bar a personal judgment against a married woman, to which the plaintiff is entitled, on the common counts, in the event he fails to establish his lien.—Bedsole v. Peters, 79 Ala. 133; Code, 1886, §§ 3034-3037. The second and third pleas to the amended complaint were bad, and the plaintiff’s demurrers to them should have been sustained. This, however, as we shall see, was error without injury to the appellant. 2. The demurrer to the fourth plea, however, was properly overruled. This plea avers, that the lumber and other materials in question were sold by plaintiff to W. T. Hodge, the husband of the defendant, on his sole credit, and without the defendant’s knowledge, or consent. The statute confers the lien only where the contract is with the owner or — 506 — proprietor, or his or her agent, trustee, contractor, or subcontractor. — Code, 1886, § 3018. This manifestly means on the part of the owner, as distinguished from his or her consent.' — -2 Jones on Liens, § 1236. Unless, therefore, the contract is made with the wife, or with her agent, or trustee, her property can ■ not, in the absence of fraud or collusion, be subjected to the lien created by the statute, except in those cases where the unpaid balance due the contractor by the owner is authorized to be subjected. — Code, § 3018. The husband, being no longer the trustee of the wife’s statutory separate estate in Alabama, as under previous Codes, can not, as husband or trustee, create a mechanic’s lien on the wife’s property, without her authority or consent. The case of Ex parte Schmidt, 62 Ala. 252, supra, was decided under the former statute. The contract of the husband was then sufficient to create such a lien on the wife’s property, because he was her statutory trustee, and, under the statute, a “trustee” of the owner was expressly empowered to make a contract of this nature. The contract must be either originally that of the wife, through herself, or her authorized agent; or else the husband, or other agent, must assume to contract for her and in her own behalf, and such contract be subsequently ratified by her, with full notice or knowledge of its nature. In the absence of a contract of this character, no lien will attach to her property. And where the credit is given solely to the husband, he alone is bound, although it may appear that the wife knew that the building or improvements were in process, of erection on her land, and said nothing, or that she and other members of the family afterwards occupied the building as a dwelling. This view is not only consonant with reason and justice, but is also everywhere fully supported by the authorities.—Copeland v. Kehoe, 67 Ala. 594; Meyer v. Broadwell, 83 Mo. 581; Garnett v. Berry, 3 Mo. App. 197; Barnet v. Berry, 8 Mo. Ap. 446; Hughes v. Ansyln, 7 Ib. 400; Loonie v. Hogan, 61 Amer. Dec., note, pp. 693-697; Flannery v. Rohrmayer, 46 Conn. 558; 33 Amer. Rep. 36; Lauer v. Bandow, 43 Wis. 556; 28 Amer. Rep. 571; Woodward v. McLaren, 100 Ind. 586; 2 Jones on Liens, §§ 1236-1238, 1253; Phillips on Mech. Liens, sec. 112. 3. The fourth plea was thus a complete defense, in itself, to the action for the enforcement of the lien claimed. The demurrer to this plea was an admission by the plaintiff of the facts pleaded. The failure of the plaintiff to take issue — 507 — on it after the demurrer was overruled requires an affirmance of the judgment. Where there are several separate pleas pleaded by way of defense to a suit, each good in itself, as going to the entire action, the sustaining of either one of them is a bar to its further prosecution. The judgment is accordingly affirmed.