Lloyd v. Hibbs

81 Pa. 306 | Pa. | 1876

Mr. Justice Gordon

delivered the opinion of the court,

The mechanic’s lien in this case is worthless, in that the claim on which it rests does not set forth that the work was done and the materials were furnished at the request or on the contract of Mrs. Lloyd. This very question has been but recently before us, in the case of Dearie and Wife v. Martin, 28 P. F. Smith 55. In that case, the claim though filed against the wife’s property, failed to set forth the fact of coverture, or that the work and materials were furnished at her request. The defendant filed a plea of coverture in bar of the claim ; this was followed by a replication on part of the plaintiff, “ that the work and materials were done and furnished at the request, and on the authority of the said Margaret Dearie, as well as the said James Dearie, and were necessary and convenient to the preservation and enjoyment of her said estate.” Defendants demurred. The court below gave judgment for the plaintiff on this demurrer. The case was brought up to this court on writ of error, and reversed. Held, Williams, J., delivering the opinion, that the claim was incurably defective in that it did not set forth her coverture, and that the work and materials were done and furnished at her request, and that, as this did not appear in the claim, it did not matter that the work and materials were in fact furnished on her order.

This was but following in the lead of Finley’s Appeal, 17 P. F. Smith 453, in which it was held, per Agnew, J., that the divesture of a wife’s title, under a mechanic’s lien, must depend upon what appears by the record, and not upon proof that she had consented to the contract under which the claim was filed. So in Mahon v. Gormley, 12 Harris 80, it was said by Lewis, J., that where the narr. was on a promissory note, and contained no averment concerning the origin of the debt, a plea of coverture, on demurrer, must be held a good answer to it. If the plaintiff wished to avoid such effect, he must either reply setting forth the special circumstances on which he relies to bind her, or amend his declaration.

As a special plea could not have helped the plaintiff in this case, inasmuch as the lien is created by the claim filed, and all things necessary to its validity must appear in it, and as it is too late now to amend, it is apparent from the authorities above cited, that the plaintiff had no lien against Mrs. Lloyd’s property, and should not have had judgment on his scire facias.

The judgment is reversed.