3 Neb. 449 | Neb. | 1872
Tbe defendant in error William Lawton, wbo was plaintiff in the court below, alleges in bis petition there filed, that be was employed by one J. C. McKoy, on tbe 18th of October, 1868, wbo was at that time in that behalf acting as tbe agent of Lillie McCoy bis wife, to do certain mason work in and about tbe building of a dwelling bouse and cistern, on lot four in block eighteen, in Omaha
The first error assigned is the ruling of the court below upon the demurrer of the defendants to the petition'of the plaintiff. A suit to enforce a mechanic’s lien is in the nature of a suit to foreclose a mortgage. Ainsworth v. Atkinson, 14 Ind., 538. When the mortgagor has conveyed his equity of redemption absolutely, the assignee only need be made a party to the bill to foreclose. Shaw
It is also assigned as error that no copy of the contract under which the work was done was filed with the statement for a mechanic’s lien. It appears that J. O. McCoy, upon some pretext, had procured the contract from one Dufrene, with whom it had been deposited for safe keeping, and left the state with it, thus by his own wrongful act rendering it impossible for Lawton to file a copy of the contract as required by section seven, chapter thirty-five, Revised Statutes, 1866. (General Statutes, page 467.) It plainly appears from the evidence that J. C. McCoy secured the written contract from Dufrene, and that it has not been seen since, and that McCoy has left the state, his whereabouts being unknown. To deny Lawton his lien upon the premises, on the ground that no copy of the written contract was filed with the account for record as by law required, or to exclude parol evidence of its contents would be to allow McCoy to take advantage of his own wrongful
When the wife is the owner of the tee of the lots, and the husband contracts for the erection of a dwelling house on the same, and the wife gives directions and instructions to the workmen, as to the kind and character of dwelling to erect, and the manner in which the work shall be done, in the absence of counteracting proof, it will be presumed that the husband acted as the agent of the wife in entering into such contract. This view of the case is certainly greatly strengthened by our statutes which provide, that any real estate belonging to a married woman may be managed, controlled, leased, demised or conveyed by her, by will or by deed, in the same manner and with the same effect as if she were single. Revised Statutes, 1866, Chap. 43, Sec. 47.
The mechanic has done the work, furnished the material, and finished the dwelling house on the lot and estate of Lillie McCoy. Her separate estate has received the benefit; shall the price of this labor and cost of material be a charge, thereon, or shall the mechanic lose the same? The wife was present and not only assented to the contract, but encouraged the mechanic to go on with the work, and gave directions how the same should be done. The equities of Lawton, the defendant in error, are strong and manifest in this case. The contract was made by the husband for the erection of a dwelling house on the lot and property of his wife. It is alleged and proven to have been made with the assent of his wife, and she herself exercised a general supervision over the work, and the tendency of legislation in our state is to vest. married
The statute giving the mechanic a lien for labor and material ought to receive a liberal construction, and not one that will put it out of the power of the husband and wife to improve the property of the wife by the erection of a dwelling house for the family. Littlejohn v. Millirous, 7 Ind., 125.
Judgment aeeirmed.