Finch v. Cecil
| Decision Date | 17 November 1915 |
| Docket Number | 385. |
| Citation | 86 S.E. 992,170 N.C. 72 |
| Parties | FINCH v. CECIL ET UX. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Davidson County; Lyon, Judge.
Action by C. F. Finch against P. S. Cecil and wife to enforce a materialman's lien. Judgment for plaintiff, and defendants appeal. No error.
See also, 86 S.E. 991.
An estate by the entirety cannot be made subject to a lien for materials furnished to either the husband or the wife for the purpose of erecting a building upon the property, without the consent of the other to the lien.
L. A Martin, of Lexington, for appellants.
E. E Raper and Paul R. Raper, both of Lexington, for appellee.
This is an action to enforce liens for material furnished in the construction of two houses on lots owned by the defendants husband and wife, to whom they had been conveyed in the same deed. It was admitted on the trial that the defendants were indebted to the plaintiff $68 for shingles used to cover one of the houses, and the jury found that the defendants also owed a further item of $67.90 for material used in building the houses.
The sole question presented is whether such indebtedness is a valid lien upon the property, which was held by the defendants, Cecil and wife, in entirety. In this case the indebtedness is due by both the defendants who joined in the contract. If the debt were owing by the husband or by the the wife for material furnished to erect a building upon property so held, it would be uncertain who would be the survivor, and in such case we have held that an estate by the entirety cannot be incumbered, nor a lien acquired upon it, without the assent of the other. West v. Railroad, 140 N.C. 620, 53 S.E. 477, 6 Ann. Cas. 360; Bruce v. Nicholson, 109 N.C. 202, 13 S.E. 790, 26 Am. St. Rep. 565. Nor would a judgment against either be a lien upon the property. Hood v. Mercer, 150 N.C. 699, 64 S.E. 897. The reason given is that:
"At common law neither the husband nor the wife can deal with the estate apart from the other, or has any interest which can be subjected by creditors so as to affect the rights of the survivor." 15 A. & E. Encyclopedia (2d Ed.) 848, cited in West v. Railroad, supra.
In this case the deed was made to the husband and wife, both being recited as grantees, and of course the property can be conveyed by them in like manner. It follows that they could by their joint deed place a mortgage upon it, and when the material furnished is under a contract made by them both the statutory lien given by Revisal, § 2016, attaches. In Weir v. Page, 109 N.C. 220, 13 S.E. 773, the court held that as the law then stood, where the materials were furnished under a contract with the husband in the construction of a building on the wife's property, the materialman could file no valid lien against the house, though the wife knew that the work was being done and the material furnished, but had made no objection. This was because the material was furnished under a contract not binding upon the wife. The court, however, speaking through Judge Davis, in order to prevent further frauds of this kind, suggested in its opinion to the consideration of the Legislature whether a married woman's liabilities might not be "made commensurate with her rights, and whether such alterations in the law [in this particular] would not prevent much injustice and many frauds." The result was the enactment of chapter 617, Laws 1901, which has been added as the last paragraph in Revisal, § 2016, as follows:
"This section shall apply to the property of a married woman when it shall appear that such building was built or repaired on her land with her consent or procurement and in such cases she shall be deemed to have contracted for such improvements."
This statute does not even require an express contract by her, but provides that when she "consents or procures" the building to be erected or material furnished she shall be deemed to have contracted for such improvement, and her property thereupon becomes subject to liens, if filed. In Finger v. Hunter, 130 N.C. 529, 41 S.E. 890, this statute was held constitutional, and was enforced, and that case has been approved in Ball v. Paquin, 140 N.C 96, 52...
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