216 Mass. 81 | Mass. | 1913
One of the grounds of the defense is that the alleged lien never attached. The solution of the question hinges upon the sufficiency of the notice. If the notice was sufficient then the lien attached.
The materials were not purchased by the respondents, who were
But it is contended by the petitioner that the notice to Fritz is sufficient at any rate to bind his interest, which was an undivided half. The term “owner” as used in the first and third sections of the statute does not necessarily mean the owner in fee. It means the person by whose authority the work is done. And it may be that if such person be the owner of any legal interest in the land which is capable of being conveyed or of being taken on execution, that interest may be subjected to a lien under the statute. R. L. c. 197, §§ 1, 3 and 32. Peabody v. Eastern Methodist Society of Lynn, 5 Allen, 540. Kirby v. Tead, 13 Met. 149. Forbes v. Mosquito Fleet Yacht Club, 175 Mass. 432. And if it appeared from the record that the work was being done by the authority of Fritz alone, or in other words, that he and he alone was the owner within the meaning of the term as used in the first and third sections, then much could be said in favor of the petitioner’s contention. But the record does not show that the work was authorized by him alone. On the contrary the fair inference is that both Fritz and his wife were erecting this building as tenants in common; and the judge may have so found. It is
Nor is there anything in the record to show that either of the respondents is estopped to set up this defense.
It becomes unnecessary to consider the nature and effect of the release out of which the other ground of defense arose.
Judgment affirmed.