146 Mich. 336 | Mich. | 1906
A bill filed to enforce a mechanic’s lien was demurred to. Upon the hearing the parties filed a stipulation^ setting forth the facts of the case, and consenting that they should be considered as incorporated in the bill of complaint for the purposes of the hearing. Stephen Mathewson is the father of Edward C. Mathewson, who is the husband of Lena B. Mathewson. They have two children. Some time prior to the erection of the dwelling house upon the premises described in the bill, Stephen said to Edward, “ If you will build a house for yourself upon the premises [described in the bill], I will give you the lot, and you can have it for your home.” Thereupon Edward made a contract with complainant for the erection of the house in controversy. At that time Edward owned no other real estate, and had no home of which he was owner. He caused this house to be erected for the purpose of making a permanent home for himself and family, and he now lives in said house, and occupies it with his family for a home, and owns no other house, lot, or premises. Lena was not a party to the contract in writing between the parties, but was fully cognizant of its execution by the complainant and took part in and gave advice in relation to the manner of the construction of said dwelling, and about changes and alterations made in the plans, and was fully aware that said contract had been made and was being performed by complainant, and she contributed no money to pay for the same. When the house was nearly completed, the defendant Edward and his family moved into it, where they have resided since.
On July 1, 1903, complainant filed his claim of lien in the usual form with the register of deeds, but at that time he had not served upon the defendants, or any of them, a sworn statement of the number and names of every subcontractor or laborer in his employ, and of every person furnishing materials, giving the amount due or to become due to them for work done or material furnished, as required by statute. It was served upon Edward later; i. e.,
The grounds of demurrer are: (1) The claim of lien was invalid because filed before the statutory statement was served. '(2) The dwelling house is the homestead of Edward and Lena Mathewson, and not subject to lien. The demurrer was Overruled, and the defendants have appealed.
We are of the opinion that the delay in serving the statement is not fatal to the lien. No Hen attached by the filing of the claim, but when the statement was served the claim became effective. It is unimportant that the statement was served after the claim was filed. Both were done within the statutory period, and a lien was perfected on July 3d by the service of the statement. There is nothing in the various cases cited inconsistent with this holding. 3 Comp. Laws, § 10714; Sterner v. Haas, 108 Mich. 488; Martin v. Warren, 109 Mich. 584; Barnard v. McLeod, 114 Mich. 73; Wiltsie v. Harvey, 114 Mich. 131; Dittmer v. Bath, 117 Mich. 571; Kerr-Murray Manfg. Co. v. Power Co., 124 Mich. 111.
We are also of the opinion that the lands in question were devoted to the purposes of a homestead under the several cases cited by counsel. Reske v. Reske, 51 Mich. 541; Bunker v. Paquette, 37 Mich. 79; Mills v. Hobbs, 76 Mich. 122; Maatta v. Kippola, 102 Mich. 116. The lot, therefore, is not subject to the Hen, the contract not having been signed by Mrs. Mathewson.
Counsel for the complainant assert that, although the land be a homestead, and was so when the contract for building the dwelling was made, he is entitled to a Hen upon the building under the statute (3 Comp. Laws, § 10712), and that it may be sold and removed from the premises under the decision in Jossman v. Rice, 121 Mich. 270. That case may appear to turn upon sub
Being of the opinion that the result in the Jossman Case could have been as consistently reached under sections 1 and 3 (if, indeed, they were not taken into consideration) , as under section 9, and that the Constitution is no greater impediment in the one case than the other, the order will be affirmed, with costs, and the cause remanded for further proceedings.