Sheldon, Kamm & Co. v. Bremer

Ostrander, C. J. It is only when land is owned by husband and wife, by entireties, or when the land is held and occupied as a homestead, that a contract for a building thereon is required to be in writing, and signed by both the husband and wife, in order that a lien may attach to either land or building. In every other case the contract .for the improvement may be written or unwritten, express or implied. If made with the owner, part owner, or lessee, of the land, a lien is created upon the improvement and also upon the entire interest of such owner, part owner, or lessee in and to the land, “at the time work was commenced or materials were begun to be furnished by the contractor under the original contract, or by the subcontractor who furnishes or is furnished with any labor or material in the performance or execution of such subcontract and also to the extent of any subsequent acquired interest of any such owner, part owner or lessee.” 3 Comp. Laws, §§ 10710, 10711. If the person contracting for the erection of a building has no legal title to the land, a lien attaches to the building or structure erected. 3 Comp. Laws, § 10712. So that a person furnishing materials or labor for any structure erected upon land may have his lien against either the structure alone, or against both the structure and an interest in the land, in all cases, without regard to the original contract, except in cases where the land is owned by entireties, or is held and occupied as a homestead. If it is so owned, or so held and occupied, he may have a lien against neither land nor building, unless the contract is signed by the husband and the wife. These provisions of the law seem to be plain. Applied in this case, they deny complainant any relief. Complainant is a subcontractor. When it began to furnish material, the title to the land was held by Galbraith and his wife, by entire-ties. The original contract was made by Galbraith, who at the time had no title to the land. Assuming, which I am not willing to do, that the subcontractor may rely upon the state of the title at the time the original contrac [580] tor began to furnish material or labor, complainant is not aided, because at that time the land was owned by entire-ties, and the improvement was begun upon land thus owned. If the court is to continue to hold, as it has heretofore held, that a mechanic’s lien must rest in strict right, and not upon mere equities, complainant is entitled to no relief. The decree dismissing the bill of complaint must be affirmed, with costs. Me Alva y, Brooke, Blair, and Stone, JJ., concurred with Ostrander, C. J.