Tarr v. Muir

• Decision Date: 22 November 1899
• Citation: 53 S.W. 663,107 Ky. 283
• Parties: TARR et al. v. MUIR et al. [1]
• Court: Kentucky Court of Appeals

53 S.W. 663

107 Ky. 283

TARR et al. v. MUIR et al. ^[1]

Court of Appeals of Kentucky.

November 22, 1899

Appeal from circuit court, Bourbon county.

"To be officially reported."

Action by Tarr & Templin and others against Kate L. Muir and husband to enforce a mechanic's lien. Judgment for defendants and plaintiffs appeal. Reversed.

McMillan & Talbott and Dennis Dunden, for appellants.

J. E Moore, Jr., and John S. Smith, for appellees.

GUFFY J.

The object of this action was the enforcement of certain liens upon a house and lot owned by the appellee Kate L. Muir; the alleged liens being for labor and material used in the building of a dwelling house upon a lot of ground in Paris Ky. the property of appellee Mrs. Muir. The building of the house and labor and material furnished were not controverted. It also seems that the several appellants filed their claims in the county clerk's office, claiming and asserting their alleged liens in the manner and within the time provided by law. The labor and material were furnished in the year 1896. The answer of appellee Mrs. Muir denied that she made any contract with any of the appellants for labor and material used in the construction of the house; also denied that appellee Mr. Muir had any authority to sign her name to any of the contracts. It appears that Mrs. Muir, upon the petition of herself and husband, was, on October 20, 1887, empowered by the Bourbon circuit court to make contracts, sue and be sued as a single woman, and dispose of her property by will or deed. After the issues were fully made up, the cause was referred to the master commissioner to take proof and report. It appears from the commissioner's report that he was of the opinion, and so reported, that the appellants were not entitled to any lien upon the lot in question, for the reason that they had no contract in writing with appellee Kate L. Muir for the building of the house or furnishing the material. Exceptions were filed by appellants to the report of the master commissioner, which exceptions were not acted on by the court. But the court rendered a judgment dismissing appellants' petition, and from that judgment this appeal is prosecuted.

Section 2479, Ky. St., reads as follows: "The provisions of the preceding sections shall apply to, and may be enforced against, a married woman, and property owned by her, if the service or labor was performed or the material furnished under a written contract signed by her." This section is part of chapter 151 of the act of February 25, 1893, title "Liens." It seems to be one of the contentions of appellee that the section supra requires all contracts referred to in said chapter, made with married women, to be made in writing, signed by them. We think the fair construction of the section quoted is that it applies only to married women under the disability common to coverture, and not to a married woman who has been invested with the powers of a feme sole by a judgment of a court of competent jurisdiction. It seems to us that, when a married woman is invested with the powers aforesaid, she is bound by her contracts to the same extent that she would be if unmarried. But, even if the foregoing is not the...