Miller v. Hollingsworth

Day, J. The facts found, of which no complaint is made, justify fhe legal conclusions of the court. The right to the establishment of a mechanic’s lien grows out of the fact of material furnished or labor performed under or by virtue of a contract with the owner or proprietor, or his agent. Eevision, § 1846. If there has been no contract with the owner of the land no lien can attach by virtue of the labor done, or materials furnished in the erection of a house upon it. Redman v. Williamson, 2 Iowa, 488. In this case it is -claimed that the contract was made with the husband of defendant as her agent. His agency cannot be inferred from the marital relation alone. Some previous appointment, or general holding out to the public as agent, or subsequent adoption or ratification of his acts is essential in order to hold the wife bound thereby. In this case it merely appears that the wife knew her husband intended building a house on her land if he could procure the lumber. She did not know [228] he intended, procuring the lumber on credit, nor that he had done so, until after the husband’s death. It is not nearly so strong a case of agency as McLaren v. Hall, 26 Iowa, 297, where the plaintiff, in virtue of a contract with "William Hall, made various improvements upon the house of Sarah Hall, wife of William, the said Sarah being present while the work was in progress, and giving various directions as to the manner in which it should be done. And yet, in that case, in a suit against the wife, aided by an attachment against the property upon which the work was done, it was held that the husband was not shown to be the wife’s agent, and that she was not liable in the action. This case fully sustains the ruling of the court below as to the husband’s agency. Appellant, however, claims that this case partakes of the nature of an equitable proceeding, and that the principles of equity are properly applicable to it, citing Greenough v. Wiggington, 2 G. Greene, 437. That case was decided under chapter 92 of the Revised Statutes of 1843, which contains provisions essentially different from our present law, providing that the court shall give-judgment according to the justice and equity of the case, and that no other property of the defendant than that upon which the lien is eatablished, shall be bound for the payment of the judgment. Our present law, in case the defendant has been served with notice or appears, authorizes an execution against the property upon which the lien is established, only when no other property of the debtor, sufficient to satisfy the judgment, can be found. But the question is settled by the subsequent case of Redman v. Williamson, 2 Iowa, 488. In this case it is said: “ The action for a mechanic’s lien is not a proceeding against the property. It must he commenced as in ordinary actions upon account. It must be against some person by name, as defendant, and can only be, by virtue of a contract, with the owner of the land.” [229] We by no means intend to hold that the defendant is absolutely discharged from liability for this material furnished. If her estate has been benefited it may be that in a court of equity she would be held responsible therefor. But we feel clear that, in view of principles already settled by this court, she cannot be held liable in this action. Affirmed.