181 Mich. 693 | Mich. | 1914
The bill of complaint is filed to enforce a lien, under the mechanic’s lien statute of this State, upon lot 209 and the house thereon, in the city of St. Joseph, Mich.
Complainant is a dealer in building materials, and began furnishing materials to defendant Lessing October 14, 1911, and so continued until the 16th day of December, 191Í.
We quote from the bill of complaint as follows:
“Your orator shows that about the year A. D. 1904, Lucy A. Wilkinson became the owner in fee of lot 209 of the original plat of the village (now city) of St. Joseph, Michigan, and that she has ever since that time been the owner of the same, except as in this
The bill then sets out in detail the material furnished by it to Mr. Lessing, claiming a balance due to complainant of $674.96. The fourth paragraph avers the service upon Mr. Morton of a notice reading:
“St. Joseph, Mich., Nov. 27, 1911.
“To Adin H. Morton,
“Main Street:
“Take notice that the undersigned is furnishing John Lessing, contractor, certain material for rebuilding a certain house situated on the following described property, number 608 Main street, this city.
“Yours truly,
“John Wallace Sons Company.”
It is not necessary to refer to the other averments of the bill further than to say there is no suggestion therein that the wife of Adin H. Morton had any interest in ,the property, or had any part in making the
Defendants answered fully.
Three defenses were urged as follows:
(1) That the premises are the homestead of defendant Morton, his wife and daughter, who have been in the open, exclusive possession of same for the last 15 years or more, paying the taxes, insurance, making and paying for the improvements as needed; Mrs. Morton, who is not a party to these proceedings, not having signed the contract for the remodeling.
(2) That, even if the homestead rights of said defendant Morton and family cannot prevail, still, the title to the property being in a stranger to the contract, the complainant is not entitled to any lien on the building itself under the third section of the lien law, for the reason that the work was not furnished for a new and original building.
(3) For the reason that there was tendered to complainant, before this action began, an amount more than sufficient to satisfy any lien that the complainant could possibly have been entitled to, and its refusing the tender discharged its lien, if any it ever had.
The case was heard in open court, and a decree entered dismissing the bill of complaint. •
A careful reading of the entire record shows that at his decease, more than 30 years ago, lot 209 and other property was owned by John Wilkinson, who left surviving him six heirs, his widow, Lucy A. Wilkinson, Alecta Hamilton, a daughter by his first wife, Frank N. Wilkinson, Charles Wilkinson, Eva Morton, wife of defendant Morton, and Margaret Needham. Charles died without issue, and Alecta Hamilton quitclaimed her interest in the estate to the widow in 1883. Defendant Morton, his wife Eva, and daughter Hazel, have occupied the premises for the last 15 years and more, and claim it as their homestead. Except as above stated, the title to the lot stood in the estate of John Wilkinson until 1904, at
It was also shown that the son Frank Wilkinson lived at the corner, of Main and Market streets, with his family, and that the daughter Mrs. Needham, with her family, lived on Main street, under a like understanding, and that to accomplish this it is claimed the deeds in 1904 were made, and Mrs. Lucy A. Wilkinson made her will.
It also appears that for many years Mr. Morton made repairs on the house, filled in the lot at an expense of $200, and that he and his wife regarded the property as their homestead, and treated it as their own.
It should be remembered, also, that Mrs. Morton, as the heir of her father, had at least a one-fifth interest in the property.
The testimony of Mr. Morton is not uncertain. So far as she has knowledge of the facts, it is confirmed by the testimony of Lucy A. Wilkinson. Mr. Morton and Mrs. Wilkinson both testified that, in making the contract, Mr. Morton was not acting for Mrs. Wilkinson. Mr. Lessing made the contract with Mr. Morton, not as agent, but as acting for himself. He testified he never saw Mrs. Wilkinson.
The bill of complaint indicates that complainants supposed Mr. Morton had a contract interest in the property. The notice that they had commenced furnishing material ran to Adin H. Morton.
After the contract was entered upon, trouble arose between Mr. Morton and Mr. Lessing, and, though the latter had been paid more than he was at that time entitled to by the terms of the contract, he failed to go on with it. Mr. Morton then completed the building at a considerable more expense than the contract price, and attempted to settle with the complainant. His attorney called on them and attempted to arrange a settlement. It is Mr. Morton’s claim that he com
It is not disputed but that a tender was made; but complainant insists the amount was not large enough, and this litigation followed.
It should be remembered the materials were furnished to remodel an old building. If the house was a homestead, the contract should have been signed by the wife. If the house and lot wa,s not a homestead, it belonged to Mrs. Lucy A. Wilkinson. She was not a party, to the contract. Nor is there evidence from which the inference can fairly be drawn that, in making the contract with Mr. Lessing, Mr. Morton was acting as the agent of Mrs. Wilkinson. See Merrill v. Brant, 175 Mich. 182 (141 N. W. 550).
We do not deem it necessary to pass upon the question of the homestead (see Maatta v. Kippola, 102 Mich. 116 [60 N. W. 300]), or upon the question of the tender. The record does not disclose such a situation as to entitle complainant upon any theory to a decree.
The decree of the court below is affirmed, with costs.