The plaintiff, appellant, began an action in the court below, against Annie R. Holt, appellee, on an account, under a verbal contract alleged to have been entered injo with Isaac J. Holt, her husband, acting as her agent, for lumber and material sold for the erection of a dwelling house on the wife’s land; and sought to have a mechanic’s lien decreed on the premises on which the build-' ing was erected. The husband was joined as defendant, as well as the cross-petitioner, Label, who sought to establish a like lien for a small bill of. hardware — about $16 — for the same building. The court found generally for the defendants Holt, and dismissed the action. From this judgment the plaintiffs and the cross-petitioner, Label, appeal to this court.
The wife was the owner of the property, an unimproved lot in the village of Wymore, upon which the building was erected, her title being evidenced by a deed duly recorded. She testified that she purchased the property with her own money, paying $100 in cash, and securing the remainder of the purchase price, $200 by a mortgage on the premises. The only substantial point of controversy is the agency or authority of the husband to charge the wife’s real estate with the liens sought to be enforced.
It does not appear, from the evidence whether the plaintiff relied upon its supposed right to a mechanic’s lien upon the assumption that the husband owned the property, nor does it appear that any effort upon its part was made to ascertain in whom the legal title thereto rested. The original estimate introduced in evidence, among other things, says: “I have this day purchased of Rust Owen Lumber Co., the following bill of goods to be used on my lots in the erection of a building for dwelling house and for which I agree to pay $225 cash.” This is signed by the husband individually, and without reference to the wife or her interest in the lots she then
It is said in Copeland v. Kehoe, 67 Ala., 594, 597: “A builder’s or mechanic’s lien is purely statutory. Its character, operation and extent must be ascertained by the terms of the statute creating and defining it. Of itself, it is a peculiar, particular, special remedy given by statute, founded and circumscribed by the terms of its creation, and the courts are powerless to take it up where the statute may leave it, and extend it to meet facts and circumstances, which they may believe present a case of equal merit, or a necessity of the same kind, as the cases or necessities for which the statute provides.”
Sec. 1, chap. 54, the mechanic’s lien law of this state, provides that any person who shall perform any labor or furnish any material for the erection of any dwelling house by virtue of a contract or agreement, express or implied, with the owner thereof, or his agents, shall have a lien to secure the payment of the same upon such house and the lot of land upon which the same shall stand.
A mechanic’s lien in favor of a principal contractor, therefore, grows out of the contractual relations between the owner of the property improved, or his or her authorized agents, and such principal contractor, and the right thereto is based upon contract and for the purpose of securing debts due thereunder.
It is said in Boisot, Mechanics’ Liens, sec. 276:
From the evidence in this case, we think it may fairly be said that the wife was cognizant of the fact that her husband was engaged in the construction of the building upon the real estate owned by her; but that she took no part in the planning or construction of the building, or in the purchase of the material therefor, or in any way gave directions regarding the labor or material entering into the building. The family lived in rented property in the same town, and it appears that for most of the time the wife was unable to leave her home on account of illness. The evidence discloses that, in the discussion of the subject by the husband and wife, it was understood that he was to pay for the material necessary for the building by working at his trade, that of carpenter and builder. The wife might very naturally acquiesce in having the proposed building erected by her husband to be paid for in such manner, and yet most strenuously object, if thereby her property was to be. encumbered, and probably sold to satisfy the debt secured thereby. She and her husband both deny specifically that she authorized him to act for her, and say that whatever he did was on his own account. The trial court, doubtless, reached this conclusion, and, unless it is against the clear weight of evidence, the finding ought not to be overturned here, as has frequently been held heretofore. The wife’s right to the control and disposition of her separate property, and to contract with relation thereto, is not to be ignored or regarded with indifference. In that respect, she stands' upon an equality with all others capable of contracting. The material man may not sell to
Whether or not the husband is the agent of the wife, is a question of fact, to be determined as other like questions, and will not be presumed from the marital relations alone. The mere fact that the wife had knowledge of the construction of the building by her husband on her property does not, in our judgment, of itself necessarily establish the agency of her husband with authority to charge such property with a lien for material used thereon; nor will her mere failure to dissent from the proposed transaction import an intention to bind her real estate to the payment of the debt. In Ziegler v. Galvin, 45 Hun [N. Y.], 44, 48, in a case similar to the one at bar, and in construing a like statute, the court says: “We are aware that this conclusion may result in a loss to the plaintiff and seem a hardship, inasmuch as her property has been benefited by the plaintiff’s labor; but this reason cannot change the effect of the statute or be considered in construing the same. Contractors and sub-contractors must conform to its provisions, for they cannot be changed to meet .the exigencies in individual cases. The wife who has a homestead coming to her through her mother may be willing, even pleased, to have her husband repair and improve the same, and.
It is suggested that the wife ratified all of the husband’s acts by occupying, with the husband, the house constructed on her land. We can not agree with counsel’s contention in this respect. This is carrying the rule of ratification farther than we are willing to go. The building was intended as a family residence. The husband had obligations resting upon him' as the head of the family, and it was incumbent upon him to provide them a home. As before stated, his wife could very properly consent to his constructing a building on her property for a residence, without intending thereby that he should act as her agent, or encumber her real estate, and thus entirely deprive her of it by its sale to satisfy such incumbrance.
In Garnett v. Berry, 3 Mo. App., 197, the syllabus reads: “Authorization or ratification of a contract to build a house on the wife’s lot will not be presumed from the fact that the house was to be a residence for the wife and children, with the husband.” In the opinion, says the court: “Plaintiff claims, in the present case, that the wife’s authorization or her ratification of the contract may be assumed from the fact that the house was to be a residence for herself and children, with her husband. here it was no part of Mrs. Chamberlain’s duty or care to provide a home for herself and her children. That was incumbent on the husband and father. The occupancy of the premises was his beneficial use, and not hers.”
We do not think that from the occupation by the wife with her husband of a building as a family residence, constructed by the husband on the wife’s land, a conclusive presumption of ratification of the husband’s acts
Affirmed.
NEBRASKA DECISIONS.
MECHANICS’ liens.