Littell & Smythe Mfg. Co. v. Miller

• Decision Date: 12 January 1892
• Citation: 3 Wash. 480,28 P. 1035
• Court: Washington Supreme Court
• Parties: LITTELL & SMYTHE MANUF'G CO. v. MILLER.

28 P. 1035

3 Wash. 480

LITTELL & SMYTHE MANUF'G CO. v. MILLER.

Supreme Court of Washington

January 12, 1892

Appeal from superior court, King county; I. J. LICHTENBERG, Judge.

Action by Littell & Smythe Manufacturing Company against P. B Miller to foreclose a mechanic's lien. Judgment for plaintiff. Defendant appeals. Reversed.

Stratton, Lewis & Gilman, for appellant.

Thos. T. Littell and J. M. Hall, for respondent.

SCOTT J.

This action was brought to foreclose a lien, under chapter 138 of the Code of 1881, for materials furnished by the respondent which entered into the construction of a building situated upon certain real estate which the respondent alleged belonged to the appellant. The appellant answered, denying that he owned anything more than a community interest therein, and alleging that said property was the community property of the appellant and his wife, Eva J. Miller setting up the necessary facts to show its community character. A demurrer thereto by the appellant that said answer stated no facts to constitute a defense was sustained by the court. Proof was taken as to other issues, and a judgment was entered directing a sale of the interest of the appellant in said real estate. It is contended that, as the husband has no power to sell the community real estate, he cannot accomplish by indirection what the law will not permit him to do directly; that he has no power to create any charge or incumbrance under which community lands can be sold; that there can be no involuntary alienation where there is no power to convey voluntarily; and that, in any event, the wife was a necessary party to the action. It is necessary to first consider section 2410 of our 1881 Code, which reads as follows: "Sec. 2410. The husband has the management and control of the community real property, but he shall not sell, convey, or incumber the community real estate, unless the wife join with him in executing the deed or other instrument of conveyance by which the real estate is sold, conveyed, or incumbered, and such deed or other instrument of conveyance must be acknowledged by him and his wife: provided, however, that all such community real estate shall be subject to the liens of mechanics and others for labor and materials furnished in erecting structures and improvements thereon, as provided by law in other cases, to liens of judgments recovered for community debts, and to sale on execution issued thereon." If the provision in this section is to be given any force at all, it must mean that the husband may contract for the erection of a building upon the community real estate, and thus subject it to the liens provided for in such cases. It the husband and wife both contract the debt, the property would clearly be liable therefor, and to the liens without the provision. It is a rule of construction that effect should be given to every part of a statute when it can be done. The management and control of the community real property is given to the husband, and the statute speaks as though he is the only member of the community who, acting alone, can create a charge against the same for improvements; and it plainly implies that he may do so, and also create debts against the community otherwise, independent of any action upon the part of the wife, by virtue of which a judgment lien may be obtained upon the community lands. It also provides that such lands may be sold on execution issued upon a judgment for a community debt, and, if it means anything, it must mean that such debts may be created by the husband independent of any specific appointment of him by the wife as her agent to represent her in community matters, and without any participation by her in the contract. To this extent the law appoints him the agent of the community; for, where both members of the community contract, their community property would be liable therefor without the provision as also would their separate property so far as the creditor is concerned, although it might be, as between each other, they would, under some circumstances, be entitled to relief, and although the court might upon request require that either the separate property of one, or the community property, as the case might be, should be first exhausted. No such powers seem to be given to the wife generally in relation to the community matters. She is only spoken...