Bauer v. Long, Docket No. 7

Docket No. 7 | Mich. | Mar 5, 1907

Grant, J.

(after stating the facts). The main question presented is, Does the statute provide for a mechanic’s lien upon land owned by the husband and wife as tenants by the entirety under a contract signed only by the husband ? Section 10710, 3 Comp. Laws, being section 1 of the mechanic’s lien law, provides for mechanics’ liens. It contemplates a lien where the land is owned by the party for whom the work is done or the materials are furnished. Section 10711, 3 Comp. Laws, being section 2 of the mechanic’s lien law, provides for such a lien upon land owned jointly by husband and wife, provided both sign the contract. Mechanics’ liens are pure creatures of the statute. Courts cannot extend them to cover cases not included in the statute. The bill shows that complainant knew how the title was held; that the building was to be so constructed that it became a part of the realty, and could not be removed after its erection, without injury to the freehold, and that he has so constructed it. His bill is framed upon that theory, for it does not pray for .a lien upon the building separate and apart from the land on which it is situated. This court has repeatedly held that one tenant by the entirety has no interest separable from that of the other. He has nothing to convey or mortgage or to which he can attach a lien. Michigan Beef & Provision Co. v. Coll, 116 Mich. 261" court="Mich." date_filed="1898-03-15" href="https://app.midpage.ai/document/michigan-beef--provision-co-v-coll-7939426?utm_source=webapp" opinion_id="7939426">116 Mich. 261, and authorities there cited.

In view of this condition of the law, and to protect the rights of each, the legislature enacted that this lien might attach if the lienor secured the written contract of the husband and wife. To hold that either might contract for a lien without the assent of the other would be clear judicial legislation. The complainant seems to concede that he has no lien upon the land, but claims the right to a lien upon the dwelling house, and to sell and remove it under his lien proceeding. This case does not fall within' section 10712, 3 Comp. Laws, providing for a lien upon the building if the building is upon lands “to which the person contracting for such erection has no legal title,” or within the decision of Holliday v. Mathewson, 146 Mich. 336" court="Mich." date_filed="1906-11-13" href="https://app.midpage.ai/document/holliday-v-mathewson-7943955?utm_source=webapp" opinion_id="7943955">146 Mich. 336. In that case the house was erected upon land to which the defendants at the time of its erection held no title. It is conceded that this question is before the court for the first time. We are cited to no authorities in point. My examination has resulted in finding one case, which holds that the lien attaches to the life estate of the husband. Washburn v. Burns, 34 N. J. Law, 18. The court there held that the husband during his life was entitled to the possession and use of the lands, and that he could attach a lien to his life interest, but no other. That case is inconsistent with the holdings of this court. •

The decree must be reversed, and the bill dismissed, with the costs of both courts.

McAlvay, C. J., and Blair, Montgomery, and Ostrander, JJ., concurred.