Liese v. Hentze

• Decision Date: 22 October 1927
• Docket Number: No. 17589.,17589.
• Citation: 326 Ill. 633,158 N.E. 428
• Parties: LIESE v. HENTZE et al.
• Court: Illinois Supreme Court

326 Ill. 633

158 N.E. 428

LIESE

v.HENTZE et al.

No. 17589.

Supreme Court of Illinois.

Oct. 22, 1927.

Error to Appellate Court, Fourth District, on appeal from Circuit Court, St. Clair County; George A. Crow, Judge.

Suit by Walter Liese, doing business as the Liese Lumber Company, against Ludwig Hentze and others. A judgment of dismissal was reversed, and judgment rendered against named defendant only, by the Appellate Court (240 Ill. App. 273), and plaintiff brings certiorari.

Reversed and remanded, with directions.

L. N. Nick Perrin, Jr., of Belleville, for plaintiff in error.

Turner, Holder & Bullington, P. K. Johnson, and W. E. Krebs, all of Belleville, for defendants in error.

STONE, J.

Plaintiff in error, doing business as the Liese Lumber Company, filed his bill in the circuit court of St. Clair county to enforce a mechanic's lien to secure the payment of $1,212.96 for material furnished George W. Reinhardt, a contractor, in the erection of a house on the lots of defendants in error Ludwig and Emielie Hentze, owned by them in joint tenancy. Defendant in error the Belleville Savings Bank, trustee under a mortgage placed on said lots after the contract with Reinhardt was signed, was also made a party defendant. The circuit court dismissed the petition. On appeal, the Appellate Court held that Liese was entitled to a lien against the interest of Ludwig Hentze only, and that a certain payment by the contractor, hereinafter discussed, should be deducted from the amount claimed. That court also held that the interest of Emielie Hentze was not subject to the lien because she received no notice thereof. The cause comes here by writ of certiorari.

The facts are as follows: On or about September 25, 1923, defendants in error Ludwig and Emielie Hentze, husband and wife, entered into a contract with George W. Reinhardt, a general contractor, to erect a dwelling on the lots in question for the sum of $6,400. Shortly thereafter, at Reinhardt's request, plaintiff in error furnished certain lumber and other materials for the purpose of constructing said dwelling. The last delivery was made November 26, 1923. All the lumber and materials were used in the construction of the dwelling. The bill of plaintiff in error amounted to $1,212.96. On December 26, 1923, plaintiff in error served the following notice on Hentze:

‘To Mr. Louis Hentze, Caseyville Road, Belleville, Ill.

‘You are hereby notified that the undersigned has been employed, and contracted with, by Geo. W. Reinhardt, to furnish said contractor, under his contract with you, certain lumber and various other kinds of building materials for the improvements, located on your property at lot five (5), block ten (10), Twelve Oak addition, Belleville, county of St. Clair, Illinois, and that there is now due or to become due the undersigned therefor, the sum of twelve hundred twelve & 96/100 dollars.

‘Dated this twenty-fourth day of December, 1923.

Liese Lumber Company,

‘By Geo. W. Reichert.’

No notice was served on Mrs. Hentze, but her husband testified that he told her about the notice and showed it to her. On November 2, 1923, defendant in error the BellevilleSavings Bank loaned Ludwig and Emielie Hentze $4,000, secured by a mortgage on the premises to the bank as trustee. On November 3, 1923, the bank, at the direction of Hentze, turned over to Reinhardt the $4,000, and at the instance, solicitation, and request of one of the officers of the bank Reinhardt opened a checking account with the bank. On the same day he drew a check on his account for $1,000, payable to plaintiff in error, and delivered it to him, without any instructions as to the account to which it was to be applied. Reinhardt owed plaintiff in error for other lumber and materials purchased, and the evidence shows that plaintiff in error applied the check to Reinhardt's account other than for materials for the Hentze house. Suit to foreclose the lien was filed February 22, 1924. Reinhardt testified that he had never made to Hentze and his wife a statement in writing, under oath, listing subcontractors and materialmen and their claims, as provided by the Liens Act (Smith-Hurd Rev. St. 1925, c. 82), and was never requested so to do by either of them. Hentze also testified that the contractor had never furnished him such a statement. Emielie Hentze did not testify.

Two questions arise in this suit: First, is personal service of notice upon Ludwig Hentze only, and directed only to him, also service of notice on his wife, Emielie, his joint tenant? Second, should the payment by Reinhardt to plaintiff in error on account, without direction as to how it was to be applied, be credited on the account of materials furnished for the house in question?

[1][2] Ludwig and Emielie Hentze owned the lots as joint tenants. Joint tenancy is defined as ‘where two or more have any subject of property jointly, in which there is a unity of interest, unity of title, unity of time, and unity of possession.’ 2 Blackstone's Com. 180; Gaunt v. Stevens, 241 Ill. 542, 89 N. E. 812. Prior to the Married Woman's Act of 1861 (Laws 1861, p. 143), the estate of joint tenancy in husband and wife could not be severed, as such tenants were in law deemed one. It was a tenancy in entirety, which could not be severed by the conveyance of one of them to a stranger, but since that act such has ceased to be the law in Illinois, and joint tenancy, even though the joint tenants be husband and wife, may be severed by one joint tenant conveying his or her interest to a stranger. Lawler v. Byrne, 252 Ill. 194, 96 N. E. 892; Washburn on Real Prop. (5th Ed.) 682. In Hardin v. Wolf, 318 Ill. 48, 148 N. E. 868, it was held that the execution and delivery of a note and trust deed by the wife to a stranger, if such trust deed is valid, effect a severance of the joint tenancy.

[3] Counsel urge that a joint tenancy, so far as affects this question, is the same as a copartnership. With this we cannot agree. As a result of a conveyance by one joint tenant to a stranger the property conveyed vests in the grantee of the joint tenant so conveying and the other joint tenant in fee simple, as tenants in common. Lawler v. Byrne, supra. The common-law feature of tenancy in entirety has been modified by the power given to either joint tenant to sever the same.

[4][5][6] It is not doubted that the provisions of the statute require that notice to the property owners shall be given by the contractor or materialman to the owner of the property. Cahill's Stat. 1925, c. 82,...