82 Kan. 556 | Kan. | 1910
The opinion of the court was delivered by
The action in the district court was one to foreclose a mechanic’s lien. Mary R. Loftus owned an undivided one-sixth of the lots affected, in fee sim
Section 649 of the code of 1909, which governs the controversy, reads as follows:
“Any person who shall under contract with the owner of any tract or piece of land, or with a trustee, agent, husband or wife of such owner, perform labor or furnish material for the erection, alteration or repair of any building, improvement or structure thereon, . . . shall have a lien upon the whole of said piece or tract of land, the building and appurtenances, in the manner herein provided.”
It will be observed that this statute permits a husband to subject his wife’s real estate to a lien for improvements which he erects thereon under his own contract, without her authority, consent or knowledge. An agency in the ordinary sense of that term need not exist. The appellant argues that the statute to this extent contravenes the provisions of the constitution requiring that married women shall be protected in acquiring and possessing property separate and apart from their husbands (art. 15, § 6), and contravenes the statute enacted in obedience to the constitution providing that the separate estate of a married woman shall not be subject to the disposal of her husband or liable for his debts (Gen. Stat. 1868, ch. 62, § 1; Gen. Stat. 1909, § 4872).
From an instruction given the jury called in the case and from the court’s findings of fact it appears that the trial court entertained the view that the statute quoted authorizes a personal judgment against the wife, as well as a lien, whenever material is purchased by her husband, is used in the improvement of her property, and is not paid for. Such is not the law. The statute gives nothing, either expressly or by implication, except the right to a lien. It creates no agency in the husband to bind the wife personally, and no personal obligation exists to pay her husband’s debt for material
“Where the husband of the owner of the property purchases material, which the statute provides he may do, the person furnishing the material under such a contract may presume, and he has the right to do so, that it is furnished to the husband of the wife, to be charged to her and upon her property, and has a right to file a lien to secure its payment.” (Page 234.)
In that case a husband entered into a contract with, his wife to furnish labor and material for the improvement of her property. The contract was performed but some of the material was not paid for, and the lumber company which sold the material perfected a lien therefor. The husband told the agent of the lumber company to go to his wife for the money when wanted and that she would pay him. The wife did make payments to the lumber company when called upon, and on such occasions desired receipts in her own name. The contract between the husband and the wife, however, was not disclosed to the lumber company. The district court rendered judgment sustaining the lien, and also rendered personal judgment against the wife. On appeal the judgment was affirmed. The contest in this court related to the effect of the undisclosed contract
Expressions are common in the law books to the effect that a mechanic’s lien binds interests in the property subsequently acquired by the person who is the owner within the meaning of the statute. An examination of the authorities shows that, although not so stated in express terms, the principle applies to those cases only in which the after-acquired interest operates to increase or enlarge the estate to which the lien has already attached, as when the holder,of a leasehold or of a life estate purchases the fee, or the holder of an equitable estate acquires the legal title, or an encumbrance is removed, or when an estate by curtesy becomes initiate by the birth of a child, or when one without title makes an improvement and then obtains title. But if the acquired interest be distinct and independent, so that it does not merge into the estate already held or inure to the support of such estate, it is not affected by the lien.
Leaving out of account necessary repairs and improvements essential to the preservation of the property, one tenant in common can not by his own contract
The case of Lumber Co. v. Fretz, 51 Kan. 134, cited by the appellee, is entirely consistent with these views. Fretz was in undisputed possession and claimed the right of such possession when the improvement was made. Afterward he received a conveyance of the legal title, but by just what right did not appear. The court held that in the absence of a contrary showing the conveyance was a recognition of a prior equitable title. When the legal and equitable titles merged the lien attached to the whole estate.
The judgment of the district court is modified so far as it relates to the appellant, Mary R. Loftus, to include no more than the foreclosure of the lien upon the one-sixth interest in the property which she originally possessed. As modified the judgment is affirmed, with costs to the appellant.