88 Ala. 500 | Ala. | 1889
-1. The first question raised by the rulings of the court on the plaintiff’s demurrer to the defendant’s pleas is, whether a married woman can bind her separate estate by a mechanic’s lien, through a mere oral contract, and without the assent or concurrence of her husband expressed in writing.
The defendant insists that, under the law as it now stands, a married woman can not create a mechanic’s lien on her property, unless she contracts in writing, and by the written consent of the husband, in accordance with the requirement of section 2346 of the Code (1886) governing the general personal contracts of the wife. This section is a part of the new married woman’s law of February 28, 1887, and is in the following words: “The wife has full legal capacity to contract in writing as if she were sole, with the assent or concurrence of her husband expressed in writing.” — Code, 1886, § 2346. ■
The statute governing the liens of mechanics and material-men creates a lien in favor of every mechanic, or other person, for work or labor done, or materials furnished, in constructing or repairing any building on land, “under or by virtue of any contract with the owner or proprietor thereof, or his agent, trustee, contractor, or sub-contractor,” upon complying with certain prescribed provisions. — Code, 1886, §§ 3018 et seq. It is further declared, that “every person, including married ivomen and cestuis que trust, for whose use, benefit and enjoyment any building or improvement shall be made, is embraced within the words ‘owner or proprietor,’ as used in this chapter.” — Code, 1886, § 3046. The statute on the subject of mechanic’s liens, as embraced in sections 3018 to 3048, is a complete system in itself. The clear legislative intention is, to require no written contract to create such a lien. An oral contract is obviously all that is necessary, provided the labor done, or materials furnished, are brought within the terms of the statute, evidenced only by “a statement in writing, verified by the oath of the claimant, or some other person having knowledge of the facts, containing a just and true account of the demand secured by the lien, after all just credits have been given,” which must be filed with the judge of probate within a prescribed time. Code, § 3022. The lien is created rather by the law, than by the contract of the parties. It is analogous to the vendor’s lien, and is based upon a like reason — that it is unconscionable for a vendee to retain a vendor’s property and not pay the stipulated price for it. It can scarcely be maintained
And so it has uniformly been held in this State since the enactment of the mechanic’s lien law. In Ex parte Schmidt, 62 Ala. 252, it was decided that a married woman, by the contract of herself, or her husband, as agent or trustee, acting in her behalf, could create a mechanic’s lien on her separate estate, although she was not capacitated to contract generally, and, in fact, was empowered by statute to bind her separate estate only for “articles of comfort and support of the household,” suitable to the degree and condition in life of the family, and for which the husband would be responsible at common law. — Code, 1876, § 2711. This ruling was followed in Schmidt v. Joseph, 65 Ala. 476. These decisions construed section 3460 of the Code of 1876, which is the same in substance with section 3046 of the present Code, as expressly authorizing married women, eo nomine, to contract for a mechanic’s or material-man’s lien, on the same terms, and in the same mode as any other person sui juris may do.
The Code of Missouri contains a statute, of which the Alabama mechanic’s lien law was originally a substantial copy. Section 3192 of that Code is the same in substance with section 3046 of the Alabama Code of 1886, with the exception, that the words “owner or proprietor” are there made to include, not only married women, but minors under eighteen years of age. — Missouri Code, 1879, § 3192. The-Supreme Court of Missouri has repeatedly construed that section as authorizing married women, otherwise laboring under disabilities of coverture, to make oral contracts binding their separate estates by a mechanic’s lien, or lien for building materials, furnished to construct improvements on land owned by her.—Ambrose Man. Co. v. Gapen, 22 Mo. App. 397; Murphy v. Murphy, 1 Ib. 600.
In New York, where a general statute gave a mechanic’s
Our conclusion is, that section 2346 of the Code has reference only to the general contracts of married women other than those’ coming within the influence of the law regulating mechanic’s liens and the liens of material-men; and that the verbal contract of a married woman, through herself or her authorized agent, is sufficient to create a lien for labor done or materials furnished for the improvement of her realty, under the provisions of sections 3018-3048 of the present Code. The plea of coverture, in such cases, can go no further, at most, than to bar a personal judgment against a married woman, to which the plaintiff is entitled, on the common counts, in the event he fails to establish his lien.—Bedsole v. Peters, 79 Ala. 133; Code, 1886, §§ 3034-3037.
The second and third pleas to the amended complaint were bad, and the plaintiff’s demurrers to them should have been sustained. This, however, as we shall see, was error without injury to the appellant.
2. The demurrer to the fourth plea, however, was properly overruled. This plea avers, that the lumber and other materials in question were sold by plaintiff to W. T. Hodge, the husband of the defendant, on his sole credit, and without the defendant’s knowledge, or consent. The statute confers the lien only where the contract is with the owner or
3. The fourth plea was thus a complete defense, in itself, to the action for the enforcement of the lien claimed. The demurrer to this plea was an admission by the plaintiff of the facts pleaded. The failure of the plaintiff to take issue
The judgment is accordingly affirmed.