Banks & Co. v. Pullen

• Decision Date: 19 March 1917
• Parties: BANKS & CO. v. PULLEN ET UX
• Court: Mississippi Supreme Court

74 So. 424

113 Miss. 632

BANKS & CO. v. PULLEN ET UX

Supreme Court of Mississippi

March 19, 1917

Division B

APPEAL from the circuit court of De Soto county, HON. E. D. DINKINS Judge.

Suit by Banks & Company against G. H. Pullen and wife, Mrs. F. M Pullen. From a judgment for the wife, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Holmes & Loggans, for appellants.

The petition filed in this cause, states a good cause of action for the recovery of the judgment, against the defendant, G H. Pullin, and that the same should be declared a lien upon the dwelling house erected, and that said house should be sold to satisfy the same.

The materialman's lien when sought to be enforced against a building upon the wife's land erected by the husband has given rise to much litigation. Our new law recognizes to the fullest extent the fact that houses are frequently built by people upon land not owned by them. The purpose of the law is to do justice to all parties, and therefore the lien will not cover the land upon which the building is erected, unless the same be done by the written consent of the owner. In the case at bar it will be observed that no judgment whatever is asked against Mrs. F. M. Pullin, nor is any relief sought as against her land. The case of Fairbanks v. Briley, 25 So. 354, does not apply, for in that case both Mr. and Mrs. Briley were made joint defendants to a suit to subject not only the plumbing fixtures placed in the house, but also the house (the property of Mrs. Briley) to the debt. This could not be done because Mrs. Briley, the owner of the house had not given her written consent for the plumbing fixtures to be placed in her house.

The facts in the case of Schiaffino v. Christ, 96 Miss. 801, are very similar to the facts in the case at bar. But relief was denied in that case, because the petition sought to recover a personal judgment upon the house and land of Madame Schiaffino and she had not given her written consent for the purchase of the material used in the erection of said house. Therefore the court could not pass upon the question as to the right of the materialman to have a lien on the house alone. Max Priebatsh v. Baptist Church, et al., 66 Miss. 345, was a case where an individual purchased material in his own name which was used in erecting a church building, on land not owned by the church. It was held that the building was liable for the material debt.

The very language employed by the law-makers in declaring the materialman's lien shows the definite purpose to charge the house or building, with the debt contracted in the purchase of the material out of which the house is constructed.

It is essentially a proceeding in rem against the edifice, and is founded upon the same wholesome doctrine upon which the scriptual law, "the laborer is worth of his hire," is founded. Necessarily there are certain legal requirements that have to be complied with, before th lien can be enforced. There must be a contract, the building must be identified with reasonable certainty and no unfair advantage must be taken of the owner of the land upon which the building is erected. The statutes are liberally construed in favor of the lien. Sharp, et al. v. Spengler, et al., 48 Miss. 360.

The alleged contract between G. H. Pullin and F. M. Pullin was, and is fraudulent, because by entering into this alleged contract under the terms mentioned therein, which was a secret contract, it would be impossible for any laborer or materialman to avail himself of the "lien of mechanics and materialmen," under the laws of the state of Mississippi. In support of this we submit the following: Bates Mach. Co. v. Trenton, etc., Co., 70 N. J. L. 684, 693, 58 A. 935, 132 Am. Rep. 811; 27 Cyc., page 299; 27 Cyc., page 301; 20 Cyc., page 23b; Picard v. Shantz, 70 Miss. 381.

The alleged contract between G. H. Pullin and F. M. Pullin, his wife, is void under section 2521, Code of 1906, because it is a contract for "work and labor" to do a specific thing for a specific sum of money, and said money is to be paid in advance. This is an entire contract and in support of this contention we submit the following: 4 Elliott on Contracts, section 3667; 2 S. & M. 585; Wooten v. Read Bobbs, 4 Merrill, Mississippi Digest, page 273, sec. 18; 14 L. R. A. 230; 3 Minnesota 109, 74 Am. Dec. 743; Phipps v. McFarlane, 19 Barb. 455; Courtright v. Stewart, 30 L. R. A. (N. S.) page 318; Gies v. Bauscher Bros. (Michigan Supreme Court), 43 L. R. A. (N. S.) page 97; Bond v. Bourk (Colorado Supreme Court); Davis v. Blanchard, Misc. , 138 N.Y.S. 202.

The very conflict of interest, and the prejudice and injury to third persons growing out of transactions like the above are but another argument in favor of the wisdom of the law restricting contracts between husband and wife.

Mayes, Wells, May & Sanders, for appellant.

If the court holds that the house built on the land of Mrs. Pullin is not subject to this lien, in order to reach this conclusion it will be necessary for the court to hold that the contract between Mr. and Mrs. Pullin was a valid contract. But, if the court should hold that this contract is valid, still, under the case of Planters Lumber Co. v. Tompkins, 71 S. R. 565, the case would have to be reversed. Our contention is that the contract is void both under section 2521 of the Code and section 2522. Section 3060 of the Code of 1906, makes any building, constructed or repaired at the instance of a tenant, or other person not the owner of the land, liable to be subject to the materialman's lien. The liability of this building to be subjected to this lien does not depend upon whether or not a fraud was perpetrated upon the seller of the material; nor does it depend upon whether or not the seller knew, or had cause to know that the land on which the building is placed, was not the land of the tenant or other person. It is made liable on the mere fact that the tenant or other person purchases the material and constructs the building. So much for section 3060.

If this building is not to be made liable it can only be protected by reason of this alleged contract claimed to have been made by Mrs. Pullin with her husband. She admits in her answer that she did make a contract with her husband to erect for her a residence on the land described in the petition, and that in compliance with this contract her husband, who was a carpenter, erected a residence for her on the ground, and that she paid him in advance. And she asserts that under the contract with her husband he was to build the house and furnish the material. The contract, itself, shows that her husband was to furnish all the material and labor to build the house, and Mrs. Pullin was to pay him one thousand two hundred dollars in advance, so the contract states.

Section 2521 of the Code of 1906, prohibits the husband and wife from making any contract with each other, so as to entitle the one to claim or receive any compensation from the other for work or labor, and declares that any such contract shall be void. In other words, under this clause of the statute, there is no way for a husband and wife to make a contract with each other by reason of which the one or the other is to receive any compensation for work done for the other. Such contracts cannot be made, whether it be verbal or written--or whether it be acknowledged and recorded. By this section of the Code, this character of contract is forbidden. The second clause of the section allows the wife or husband to make a contract with the other to rent a plantation and carry on business, etc., if they make a written contract and sign, and acknowledge, and record same. But this second clause of the statute has no relation to the first clause, and the contract named in the first clause cannot be made under any circumstances.

Section 2522 of the Code prohibits the transfer or conveyance of goods and chattles, etc., between husband and wife, unless the transfer or conveyance be in writing, and acknowledged and filed for record. We thus see that under the answer of Mrs. Pullin, and the contract which she offers, the pleading makes out a case of clear liability in so far as this building is concerned to the lien of the materialman. Either of the statutes would avoid this contract. She declared in her answer that the contract was for labor and materials. Section 2521 prohibits the contract for labor, and section 2522 prohibits any conveyance of goods and chattles between the husband and wife, unless the contract is acknowledged and recorded, and the contract itself shows that it was not acknowledged and recorded--and she does not so allege in her answer. Under either of these statutes this contract is a nullity. 9 Cyc. 475; Browdre v. Carter, 64 Miss. 221; F. M. Arnold v. S.E. Elkins, 67 Miss. 675; Black Todd & Co. v. Robinson, 62 Miss.68; Cotton v. McKenzie, 57 Miss. 419.

We further assert that counsel cannot produce an authority of this court which will hold that under facts like this, that this building cannot be subjected to the lien of the materialman. Cases may be found where the materialman sought to extend the lien not only to the building or fixtures, but to the land, and this court held that this could not be done. In fact the statutes so provide, unless there is the written consent of the owner of the land to the placing of the building on it. Planters Lumber Co. v. Tompkins, 71 So. 565; Fairbanks Co. v. Briley, 25 So. 354; Flake v. Central Hardware Co., 96 Miss. 838, 51 So. 461, and Schiaffino v. Christ, 96 Miss. 801, 51 So. 546; Flake v. Central Hardware Co., 51 S. R. 461.

We earnestly insist that this case should be reversed.

Mayes & Mayes, for appellee.

The written...