Cameron v. McCullough
| Decision Date | 17 February 1877 |
| Citation | 11 R.I. 173 |
| Parties | JOHN A. B. CAMERON et al. v. JAMES MCCULLOUGH et ux. |
| Court | Rhode Island Supreme Court |
Jul 17, 1875.
Under Gen. Stat. R.I. cap. 166, a mechanic's lien does not attach to the estate of a married woman for any improvement thereon made, unless such improvement has been contracted for in writing by her jointly with her husband, or has been contracted for by the husband with the wife's consent in writing.
PETITION IN EQUITY for the enforcement of a mechanic's lien. The facts are stated in the opinion of the court.
Tillinghast & Ely, for complainants.
Francis W. Miner & M. D. L. Mowry, for respondents.
This is a petition for the enforcement of a mechanic's lien against the real estate of the defendants. The defendants are husband and wife, but they own, or did own when the lien is alleged to have accrued, the real estate as tenants in common. The lien is claimed on account of a house built upon the real estate under a contract in writing made with the wife, and which purports to bind only the wife. The husband was not at home when the contract was made nor when the work was commenced. He came home the day after the work commenced, and at once put a stop to it and sent away the workmen. Afterwards, however, he withdrew his opposition and allowed the work to go on, witnessing its progress at different times, and on one or more occasions directing certain things to be done in variation from the contract, but the additional expense caused thereby was paid by his wife. He came with his wife from New York at one time when she came for the purpose of making a payment under the contract, and the testimony satisfies us that he was present when the payment was made. There is, however, no testimony to show that he ever expressly assumed the contract or promised to fulfil its stipulations. Neither do we find any testimony to show that the contractor regarded him during the progress of the work as a party to the contract. He would naturally have asked him to sign it, if he had wished to bind him by it. He did not do so; but was content with simply a permission to go on under the contract as it was. Indeed, he does not seem to have doubted the capacity of the wife to contract in her own behalf. He says in fact that she told him the money to be used was hers, left to her by her former husband, and that she didn't want her husband to have anything to do with the matter.
The petitioners contend that it is enough to bind the estate of the defendants that the husband acquiesced in the work. Doubtless it is enough if he acquiesced under circumstances which authorize us to infer a promise on his part to pay for the work, or even in the absence of circumstances to repel such an inference. The difficulty in this case is, that here there was an express contract, made not with the husband but with the wife, and purporting to bind only the wife; and there is no positive evidence to show either that the husband had any reason to suppose that the contractor intended to look to him personally, or that the contractor did entertain such an intention, until after the work was done or nearly done, and the wife failed to fulfil her contract. Under such circumstances we do not feel authorized to infer from the acquiescence of the husband, or rather from the withdrawal of his opposition to the work, and from the few directions which he gave in regard to it, a promise on his part to pay for it, either severally or jointly with his wife. On the other hand, we think the most that can be inferred is that when he found his wife had made the contract, and that the petitioner Cameron was willing to perform it trusting to her responsibility, he withdrew his opposition and permitted the work to proceed under that understanding. In this view the petition must be dismissed; for under our statute (Gen. Stat. R.I. cap. 166, § 1) the lien accrues only when the work is done " by contract with or at the request of the owner" of the land, or " by the husband of such owner with the consent of his wife in writing." In this case we think the wife alone made the contract, and it is not even claimed that her contract or request made independently of the husband is sufficient to entitle the petitioners to a lien. And see Hayes v. Fessenden, 106 Mass. 228, and Knapp v. Brown, 45 N.Y. 207.
Petition dismissed.
NOTE. - MATTESON, J., did not sit with the court when the above petition was heard.
After this opinion had been given, the complainants moved for a rehearing of the cause.
Tillinghast & Ely, in support of the motion.
The petitioners have asked a reargument in this case, partly on account of the importance of the question and principles involved, but more particularly because, as is evident from the opinion, they failed at the former hearing to make their full position understood. For, though then laying particular stress upon the testimony which seemed to them to show that the husband had made himself a party to this contract, they by no means meant (as seems to have been understood by the court) to admit that this was essential to their right to recover; but intended to claim, and supposed they were understood to claim as they now claim, that the wife's interest in the estate was equally well bound by her contract alone. And it is to this question that they now respectfully ask the attention of the court.
The facts are these. The contract is in writing and is signed by Mrs. McCullough. It was for building a house upon an estate held by her in fee simple to her sole and separate use under the statute, and was for the benefit of the estate, which was before a vacant unimproved lot. The house was actually built under the contract, upon a lot which by intermediate partition by mutual deeds has been set off to Mrs. McCullough in severalty; and it is upon this lot with the house upon it that the lien is now claimed.
The case, in this aspect, it is believed, resolves itself into two questions: -
First . Whether in this state the estate of a married woman, held to her separate use under the statute, is charged in equity by her simple written contracts, entered into with express reference to it and for its benefit?
Second . If so, whether such charge may not be equally well enforced in a proper case by petition under the mechanics' lien law as by general bill?
1. The first question it is submitted - though it is believed it is now presented for direct adjudication in this state for the first time - can scarcely at this day be considered an open one. For that the estate of a married woman held to her separate use, whether such estate be legal or equitable, and whether it be so held under deed, statute, or settled trusts, to the extent, at least, of her beneficial enjoyment of, or control over it, is in equity charged by her contracts of this nature, may now fairly be said to be the universally established doctrine of the courts of equity both of England and of this country. Indeed, the question has always rather been whether her estate is not more broadly charged by her general engagements, whether written or verbal; and what circumstances are necessary in these classes of engagements to charge the estate.
The growth of the doctrine in the English courts may well be traced through the following cases: Hulme v. Tenant, 1 Bro. Ch. C. 16 (1778); Murray v. Barlee, 3 Myl. & K. (10 Eng. Chan.) 209 (1834); Owens v. Dickenson, 1 Cr. & Ph. (18 Eng. Chan.) 48 (1840); Vaughan v. Vanderstegen, 2 Drewry, 165 (1853); Johnson v. Gallagher, 3 De Gex, F. & J. 494 (1861); Shattock v. Shattock, L. R. 2 Eq. 182 (1866); Mrs. Mathewman's case, L. R. 3 Eq. 781 (1866); Butler v. Cumpston, L. R. 7 Eq. 16 (1868); Picard v. Hine, L. R. 5 Ch. Ap. 274 (1869); McHenry v. Davies, L. R. 10 Eq. 88 (1870).
The American cases, where not controlled by statutes, may generally be divided into two classes: though in some placed in the second class, the question seems as yet to have arisen only upon that class of contracts, while the reasoning indicates that, when the question arises, the courts may be prepared to sustain the broader charge.
First . Those which adopt the broad English doctrine that the estate is charged by the wife's general engagements, at least if in writing.
Second . Those which, to create the charge, require that her contract be entered into either with express reference to, or upon the faith of, or for the benefit of, the estate.
The case at bar falls plainly within this second class, and within those cases under it which hold to the strictest rule. But whether at the present day, with the extended and constantly extending powers and control over their separate estates conferred by statute upon married women (and quoere, whether our own statute, cap. 152, § 7, does not already give her full power to convey it, or at least her interest in it, by her own...
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