96 Mich. 175 | Mich. | 1893
Complainant, a material-man, filed the bill in this cause against Frank Le Fevre and Almina Le Fevre, husband and wife, and Michael Daily, to enforce a mechanic’s lien for materials furnished for a hotel erected upon premises owned by Frank Le Fevre..
A contract to furnish material, erect and complete said
Upon the question of fact it is sufficient to say that we agree with the circuit judge that the complainant established the contract alleged, and that it was an original promise, and valid. It was not within the statute, for complainant did not sell to Willis & Grant, nor did they purchase the material from him.
A number of legal questions arise. It is contended that there was no meeting of minds, because no time appears to have been specified when the amount agreed upon for the material should be paid; but the rule of construction in such cases is that payment upon delivery is contemplated.
The statement filed with the register of deeds was to the effect that the materials were furnished “in pursuance of a certain contract with Frank Le Fevre,” and that there was $220 due; and a copy of this statement, with notice of filing, was served on Frank Le Fevre only. The bill alleges two contracts, — one made on or about July 26, 1890, for $100; and another, that complainant should furnish for the building such materials as Le Fevre might
A point is made over the matter of notice, defendant Alminp Le Fevre not having been served with notice. The object of a notice is to prevent the owner from paying the principal contractor (Act No. 216, Laws of 1885, p. 295, § 3), and in this case, as the contract was made with the owner, there was no necessity for a notice. The
The building for which this material was furnished was a hotel, with a wing; the latter, used for a barber shop, being entirely on the west half of lot 11, while the former was on the west half of lot 12, of block 19, in Bay City. The proof shows that the timber was used in both, which were being erected together, and it is not an unreasonable assumption that both were contemplated when the contract was made. We think they should be treated as one parcel, as defendants evidently treated them, and that the lien attached to both.
The remaining question pertains to the homestead rights of Mrs. Le Fevre. The defendants purchased the premises for a homestead before contracting, and moved upon them before the statement of lien was filed, with the design of making the same their home. They thereby made it a homestead, and the fact that the building erected and in which they reside is a hotel made no difference. Mills v. Hobbs, 76 Mich. 122; King v. Welborn, 83 Id. 195. To the amount of $1,500 it was exempt from this lien. Beyond that sum the lien attaches, and, as the premises cannot be divided, a sale affords the only means of reaching the excess. To hold that it could not be reached because indivisible would be to do violence to the plain intent of the statute, which, while it aims to afford every one a shelter, was not designed to enable one to defeat his creditors by so constructing valuable property as to make it difficult to divide it.
The decree of the circuit court will be affirmed, with costs.