Poe v. Ekert

Given, J. I. About three years prior to 1892, M. B. Ekert, husband of the defendant, purchased and paid for out of his own money six lots in the town of Essex, and caused the title thereto to be made to his wife, who continues to hold the same. In 1892, Mr. Ekert proceeded to erect a dwelling house on said lots to be used as a residence for himself and family, procuring the lumber for that purpose from the plaintiff, and for which there is a balance of two hundred and ninety-four dollars and forty-seven cents due to the plaintiff. In support of his claim for an equitable lien appellant relies upon Miller v. Hollingsworth, 86 Iowa, 163, and cases following the ruling therein. In that case the court says: “Giving to the averments of the petition, and especially the averment that the lumber was furnished and- used in the improvement of the defendant’s real property ‘with the full knowledge and acquiescence of the defendant,’ a liberal construction, we hold that the demurrer should have been overruled. Full knowledge and acquiescence, under such an interpretation, would imply that the defendant knew the lumber was purchased by the husband without being paid for by him; that, while it was so unpaid for, it was being used in the improvement of her real estate to the enhancement of its value; and that she acquiesced in such use with such full knowledge of those facts. It should also appear that it was not, in fact, sold to the husband in reliance upon his credit alone.” It is further said: “Of course, her want of acquiescence might be manifested by fewer facts or slighter circumstances [363] than would be required from an adult male ownér.” No doubt the defendant knew that this lumber was being furnished and used- in the construction of the building on her lots, and acquiesced therein, but she did not know nor acquiesce in its being made a charge against her or her property. The understanding between her and her husband was that he would pay all the expenses incurred in erecting the building. It does not appear that the lumber “was not, in fact, sold to the husband in reliance upon his credit alone,” but, on the contrary, we think it fairly appears that the credit was to him alone. The plaintiff testifies: “The contract was with Mr. M. B. Ekert. Had no talk with Mrs. Ekert when debt was contracted. * * * I don’t know that he bought it with his wife’s knowledge. * * * My agreement was made with Mr. Ekert. I never had any conversation with her about it. My entire contract and deal was with him. * * * He had been doing business that way as long as he traded with me. Had been doing all the business himself. He bought lumber before. I don’t know who he bought it for. He bought it to improve her property. I don’t know that he bought it in her name or her credit or with her knowledge. I did not ask him.” Mr. Ekert testified that Mr. Poe was to furnish the material; that he was to pay one hundred dollars when the house was finished, and to pay the balance. out of his pension as fast as he could; that there was nothing said about a lien on the property; and that the agreement was, that appellant was to look to Mr. Ekert alone for pay. Appellant testified: “No; I don’t think he told me that he wanted me to pay it out of his pension. I would almost be willing to swear that he did not tell me that he would pay for it out of his pension.” We will not discuss the evidence further. It is sufficient to say, that it full} [364] sustains the claim of the defendant, that the lumber was sold to her husband on his credit alone. — ■ Affirmed.