32 Neb. 19 | Neb. | 1891
This action was brought in the district court of Johnson county to foreclose a mechanic’s lien.
The items for which the lien was claimed are as follows:
1 10 ft. I. X. L. windmill......................... $85 00
1 Figure 410 pumps and brass cyl................ 26 00
1 Round tank 4-|x2................................. 12 00
1 House tank........’.................................. 9 00
1 Milk tank 8x23x23............................... 16 00
26 ft. ¿ galvanized pipe and rods................... 11 70
191 ft. galvanized pipe.............................. 38 20
192 ft. 1 black pipe.................................... 28 80
1 Brass check valve................ 1 55
1 Brass screw cock.................................. 1 40
1 Derrick.............................................. 30 00
$259 65
A mechanic’s lien was filed in the proper office in Johnson county. This was sworn to before a notary public in Jackson county, Missouri, and it is now objected that the oath is invalid, and therefore that no lien attaches by reason thereof.
Section 3, chapter 54, of the Compiled Statutes requires a party who claims a lien to make an account in writing of the items of labor, skill, machinery, or material furnished, or either of them, as the' case may be, and after making oath thereto shall, within four months of the time of performing such labor or skill, or furnishing such machinery or material, file the same in the office of. register of deeds of the county of which such labor, skill, and material shall have been furnished, etc. The fact is apparent that the oath may be made before any person authorized to administer oaths, and the particular county or state where the oath is taken is not material. The claim for a lien, however, must be filed in the office of the register of deeds of the county wher'e the labor was performed or material furnished ; in other words, where the property improved or benefited by the labor and material is situated. The objection to’the oath of the notary, therefore, is unavailing
Second — It is claimed that a mechanic’s lien will not attach for the character of structure erected in this case.
See. 1, chap. 54, of the Compiled Statutes provides that-“Any person who shall perform any labor, or furnish any material or machinery or fixtures, for the erection, reparation, or' removal of any house, mill, manufactory, or building, or appurtenance, by virtue of a contract or agreement, expressed or implied, with the owner thereof or his agents, shall have a lien to secure the payment of the same upon such house, mill, manufactory, building, or appurtenance, and the lot of land upon which the same shall stand.”
The third objection is, that the real estate is the homestead of the defendant and that his wife never consented to the creation of the debt, and therefore that the homestead is exempt.
Sec. 3, chap. 36, Compiled Statutes, provides that “ The homestead is subject to execution or forced sale in satisfaction of judgments obtained: First — On debts secured by mechanics’, laborers’, or vendors’ liens upon the premises. Second — On debts secured by mortgages upon the premises, executed and acknowledged by both husband and wife, or an unmarried claimant.” This section makes the homestead liable for a mechanic’s lien. If the wife objects to the erection she should make it known at the earliest opportunity and prevent, if possible, the party from putting up the structure. If she sits by without objection until the improvement is made, thereby adding to the value of the homestead, she will be deemed to have waived her objection and the homestead will be chargeable with the cost of the improvement. Good faith requires this on the part of the wife, and as no objection was made the improvement must be held to have been made with her tacit consent.
Upon the whole case it is apparent that there is no error in the record and the judgment is
Affirmed.