Rimmey v. Getterman
| Decision Date | 12 March 1885 |
| Citation | 63 Md. 424 |
| Parties | WILLIAM H. RIMMEY v. MARY C. GETTERMAN and Others. |
| Court | Maryland Court of Appeals |
Appeal from the Circuit Court for Baltimore County, in equity.
This is an appeal taken from an order dismissing the bill of complaint, with costs to the defendants. The case is stated in the opinion of the court.
The cause was argued before ALVEY, C.J., YELLOTT, STONE, MILLER IRVING, RITCHIE and BRYAN, JJ.
William S. Bryan, Jr., and John T. Ensor for the appellant.
Benjamin Kurtz, for the appellees.
In order to charge the general debts or personal engagements of a married woman upon her separate estate as a lien in equity it is necessary that it should affirmatively appear that her contract was made with direct reference to her separate estate, and that it was her intention to charge the same. The intention to charge must be part of the contract, and it must be shown that she contracted for the direct purpose of charging her separate estate. It is not sufficient to show that the contract was entered into by the creditor upon her personal credit, and was for work done and materials furnished for the improvement of her separate estate, whereby the same was enhanced in value. Wilson v. Jones, 46 Md. 349; Koontz v. Nabb, 16 Md. 549; Conn v. Conn, 1 Md. Ch. 217; Hall v. Eccleston, 37 Md. 521; Cooke v. Husbands, 11 Md. 492; 2 Story's Eq. secs. 1398, 1401.
The fact that the wife furnished the husband money to complete the improvements which he had commenced on his own account, but was unable to finish without her assistance is convincing evidence that she did not intend that the non-payment for the improvements should entitle the appellant to a charge or lien upon her property.
The appellant, in order to subject the wife's separate estate, in equity, with payment for improvements put upon it, upon the ground that her husband contracted with him for this purpose, as the agent of the wife, must show by clear proof that the wife not only authorized or ratified the contract, but that she gave the husband the further authority to charge said payment upon her separate estate; and that, as a matter of fact, the husband, in his contract, as said agent, with the appellant, did charge said payment upon his wife's separate estate.
In order to establish an implied agency on the part of the husband to act for the wife, from the fact that he is in the possession and use of her property, the proof must be clear and satisfactory, for the reason that his relation as husband entitles him to the occupation of her property. And where the wife's subsequent ratification of the husband's act is relied upon in proof of the agency, the evidence must be of a stronger and more satisfactory character than would be sufficient to establish a ratifica-ation between other persons, because the wife is presumed to be under the influence of the husband. Bishop on Married Women, sec. 396; Rowell v. Klein, 44 Ind. 291, 293; McLaren v. Hall, 26 Iowa, 297-305.
The knowledge on the part of a married woman, that improvements are being placed upon her property by her husband, and that she did not object to the same, and made suggestions while the work was in progress, as to the character and dimensions of the buildings, are not sufficient circumstances in themselves to show that she ratified the contract made by her husband for this purpose. McLaren v. Hall, 26 Iowa, 297; Abbott's Trial Ev. 358.
The power of the wife, or of her husband acting as her agent, to charge her separate estate, in equity, with the payment of her debts, is limited to executed acts, and does not extend to executory contracts. Stewart & Carey on Husband & Wife, 112, note 1; Light v. Lane, 41 Ind. 542; Stevens v. Parish, 29 Ind. 260.
The absence of any allegation in the original bill, that the wife intended to charge her separate estate with the payment of the appellant's claim, and the entire failure of the proof to support the allegation, entitles the court to the conclusion that this allegation was inserted in the amended bill simply to overcome the grounds of the demurrer (sustained by the court below), interposed by the appellees to the original bill, and to afford him a standing in court.
The letter claimed to have been written by the appellant's counsel to Mary C. Getterman and her husband, to the effect that he would sell her property if the appellant's claim was not paid, was an insufficient notice of the intention of the appellant to claim a lien against the buildings, etc., under the provisions of the mechanics' lien law. Rev. Code, Art. 67, sec. 10, etc.; 2 Poe's Pl. & Pr. secs. 738, 747; Hess v. Poultney, 10 Md. 267, 268; Thomas v. Barber, 10 Md. 390; Trustees, etc., v. Heise, 44 Md. 473.
There is no evidence in the case that the contract alleged to have been made by the wife, or her husband, as her agent, with the appellant, was in writing. This is essential to entitle the appellant to a mechanics' lien, based upon a contract with a married woman. This point was not raised or decided in Jarden v. Pumphrey, 36 Md. 364; Six v. Shaner, 26 Md. 444; Sturmfelsz v. Frickey, 43 Md. 569; Philips on Mechanics' Liens, sec. 95, 108, 112, 113.
The original bill in this cause charges that the appellee, Mary C. Getterman, wife of Lewis Getterman, is the owner of certain land in Baltimore County, and that at her request, and by her employment, the appellant built on her land certain houses, and that there remained due to the complainant on account of his work upon, and materials furnished for, the said houses, the sum of $599.31, for which he had a mechanics' lien, and prayed for a sale of the property to pay the lien. The amended bill filed by leave of the court adds to the charges of the original bill the allegation that Mrs. Getterman, at the time of making the agreement to build, agreed with the complainant to charge her separate estate with the payment of the cost thereof. The prayer of the amended bill is for a sale of the property to pay the lien, as asked in the original bill, and for such other and further relief as the complainant's case required.
The answer of Getterman and wife admits the wife's ownership, but denies that Mrs. Getterman agreed to charge, or intended to charge, her separate estate for the buildings. They admit that the appellant built the houses charged for in June, July, September and October, 1882, but they deny that the work was done at the request of Mrs. Getterman. They aver that it was done at the request of, and in pursuance of a contract with, Lewis Getterman, the husband. The answer charges that no notice was served on Mrs. Getterman, or her husband, within sixty days after finishing the work or furnishing the materials, either in writing or by parol, of complainant's intention to claim a lien. It denies that the amount claimed, or any amount, is due from either of the respondents. It denies that they accepted the buildings, and charges that the work was unskilfully done.
The answer avers "the actual transaction in the matter of the erection of the buildings" to have been as follows viz.: ...
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