20 Utah 432 | Utah | 1899
After stating the facts,
delivered the opinion of the court.
The question- to be determined is, was Morrison, Merrill & Co., under the findings of fact, entitled to a lien upon the premises, as against H. L. Clark, and if not, did the court err in setting aside the conclusions of law as found by the referee, and in making different conclusions of law and rendering a decree in favor of Morrison, Merrill & Co., subjecting the land of Hardie L. Clark to their lien for materials furnished under the contract entered into by contractor Smith and J. W. Clark ?
Ch. 41, p. 44, Sess. Laws 1894, in force when this contract was made, provides, among other things, that the contractor, etc., shall have a lien for services rendered, labor or materials furnished, whether at the instance of the owner or of any other person acting by his authority or under him, as agent, contractor, or otherwise.
Under this statute the land upon which the building is
In Culmer v. Wilson, 13 Utah, 130, it is held in substance that our statutes have relieved married women from common law disability, and given them independent power to deal with, manage, control,- transfer, dispose of, hold and enjoy all their separate property, without limitation or restriction by reason of marriage, to make contracts, contract property, to sue and be sued, defend and be defended, and in all respects places her in the same position with reference to her contracts, separate property and liability, on the same footing with other persons and as though she was unmarried.
In this case the facts found show that J. W. Clark, defendant’s husband, contracted in writing for himself alone and on his own behalf to build the house-on the lot in question, which in fact belonged to his wife, and that he was not the agent of his wife. It further appears that defendant Hardie L. Clark knew that J. W. Clark had made the written contract, lived on the land, and knew the work in constructing the house was going on; that she did not prevent the erection of the building, but never consented that her land should be liable on the contract for' labor or material, or otherwise; that she disagreed with her husband about constructing the house on this lot, and wanted it erected on land in California, and objected and protested against the building of the house on her land, and that- he built the house against her objection and over her protest, and she never consented thereto. During all this time and up to the completion of the house she believed, and he was in
In States having statutes providing that the wife’s property may be subject to a lien for material furnished on a contract by the husband, the decisions hold the lien good on such contracts. So, where the husband makes such contract as the agent of his wife, or she expressly ratifies his contract made, or where the wife fraudulently connives to conceal her ownership, and by acts and declarations fraudulently misleads the contractor into the belief that her husband owns the land on which he furnished material and labor, or so acts as to induce him to believe that although she owns the land she will become liable for the improvements that were being made, a lien has been declared, but the facts in this case do not present such a question.
J. W. Clark was not her agent. He had no authority whatever to bind the wife. While she knew of the contract, lived on the land, and did not prevent the erection of the building, she never consented to it, but on the contrary objected to it, protested against it, and never in any way gave her consent to it. She concealed nothing and consented to nothing that was done, but objected to everything that was done. She believed her husband to be, and he was in fact, able to pay for what he contracted. .Under such circumstances no power resides in the husband, as such, to bind the land of his wife. Her estate cannot be made liable for improvements she did not authorize and to which she protested and objected. The fact that the wife occupied the premises with her husband
Many authorities are cited by the respondent upon this question, but an examination of them shows that in nearly every case the question decided turned either upon a statute authorizing the husband to make the contract, or upon the husband’s agency, or the wife’s consent or ratification of the contract, with full knowledge thereof. In this case the facts found are not broad enough to implicate the wife, so as to bring her within the rule contended for by respondent.
In Wadsworth v. Hodge, 88 Ala. 500, it is held that: ‘ ‘ The contract must be either originally that of the wife, through herself, or her authorized agent; or else the husband, or other agent, must assume to contract for her and in her own behalf, and such contract be subsequently ratified by her, with full notice or knowledge of its nature. In the absence of a contract of this character, no lien will attach to her property. And where the credit is given solely to the husband, he alone is bound, although it may appear that the wife knew that the building or improvements were in process of erection on her land, and said nothing, or that she and other members of the family afterwards occupied the building as a dwelling. This
There are several other questions discussed in the brief of appellant, but we refrain from considering them, as the matter discussed disposes of the case.
We conclude that the findings of fact do not warrant or justify the conclusions of law, judgment and decree found and made by the court as against appellant Hardie L. Clark, or justify any finding or decree that Morrison, Merrill & Co. had a right to any lien upon the property of Hardie L. Clark.
The judgment is reversed, and the case remanded with instructions to set aside the findings of fact and decree made by the court as against appellant, and to dismiss the cross complaint of Morrison, Merrill & Co. as against appellant Hardie L. Clark, with costs.