33 Iowa 224 | Iowa | 1871
The facts found, of which no complaint is made, justify fhe legal conclusions of the court. The right to the establishment of a mechanic’s lien grows out of the fact of material furnished or labor performed under or by virtue of a contract with the owner or proprietor, or his agent. Eevision, § 1846. If there has been no contract with the owner of the land no lien can attach by virtue of the labor done, or materials furnished in the erection of a house upon it. Redman v. Williamson, 2 Iowa, 488. In this case it is -claimed that the contract was made with the husband of defendant as her agent. His agency cannot be inferred from the marital relation alone. Some previous appointment, or general holding out to the public as agent, or subsequent adoption or ratification of his acts is essential in order to hold the wife bound thereby. In this case it merely appears that the wife knew her husband intended building a house on her land if he could procure the lumber. She did not know
This case fully sustains the ruling of the court below as to the husband’s agency.
Appellant, however, claims that this case partakes of the nature of an equitable proceeding, and that the principles of equity are properly applicable to it, citing Greenough v. Wiggington, 2 G. Greene, 437. That case was decided under chapter 92 of the Revised Statutes of 1843, which contains provisions essentially different from our present law, providing that the court shall give-judgment according to the justice and equity of the case, and that no other property of the defendant than that upon which the lien is eatablished, shall be bound for the payment of the judgment. Our present law, in case the defendant has been served with notice or appears, authorizes an execution against the property upon which the lien is established, only when no other property of the debtor, sufficient to satisfy the judgment, can be found. But the question is settled by the subsequent case of Redman v. Williamson, 2 Iowa, 488. In this case it is said: “ The action for a mechanic’s lien is not a proceeding against the property. It must he commenced as in ordinary actions upon account. It must be against some person by name, as defendant, and can only be, by virtue of a contract, with the owner of the land.”
But we feel clear that, in view of principles already settled by this court, she cannot be held liable in this action.
Affirmed.