Wardsworth v. Hodge

• Decision Date: 14 January 1890
• Citation: 7 So. 194,88 Ala. 500
• Parties: WARDSWORTH v. HODGE.
• Court: Alabama Supreme Court

7 So. 194

88 Ala. 500

WARDSWORTH v. HODGE.

Supreme Court of Alabama

January 14, 1890

Appeal from city court of Montgomery; THOMAS M. ARRINGTON, Judge.

Action by W. W. Wardsworth against M. L. Hodge. Judgment was rendered for defendant, and plaintiff appealed.

Sayre, Stringfellow & Le Grand, for appellant.

Tompkins & Troy, for appellee.

SOMERVILLE J.

1. The first question raised by the rulings of the court on the plaintiff's demurrer to the defendant's plea is whether a married woman can bind her separate estate by a mechanic's lien, through a mere oral contract, and without the assent or concurrence of her husband, expressed in writing. The plaintiff in the present case is an original contractor, and furnished certain building materials consisting of lumber, shingles, and other articles, which were used in the early part of the year 1888 to construct a house on land owned by the defendant, Mrs. Hodge. The defendant insists that under the law, as it now stands, a married woman cannot create a mechanic's lien on her property unless she contracts in writing, and by the written consent of the husband, in accordance with the requirement of section 2346, Code 1886, governing the general personal contracts of the wife. This section is a part of the new married woman's law of February 28, 1887, and is in the following words: "The wife has full legal capacity to contract in writing as if she were sole, with the assent or concurrence of her husband, expressed in writing." Code 1886,§ 2346.

The statute governing the liens of mechanics and material-men creates a lien in favor of every mechanic or other person for work or labor done, or materials furnished, in constructing or repairing any building on land "under or by virtue of any contract with the owner or proprietor thereof, or his agent, trustee, contractor, or subcontractor," upon complying with certain prescribed provisions. Id. § 3018 et seq. It is further declared that "every person, including married women and cestuis que trust, for whose use, benefit, and enjoyment any building or improvement shall be made, is embraced within the words 'owner or proprietor,' as used in this chapter." Code 1886, § 3046. The statutes on the subject of mechanics' liens, as embraced in sections 3018 to 3048, are a complete system in themselves. The clear legislative intention is to require no written contract to create such a lien. An oral contract is obviously all that is necessary, provided the labor done or materials furnished are brought within the terms of the statute, evidenced only by "a statement in writing, verified by the oath of the claimant, or some other person having knowledge of the facts, containing a just and true account of the demand secured by the lien, after all just credits have been given," which must be filed with the judge of probate within a prescribed time. Code, § 3022. The lien is created rather by the law than by the contract of the parties. It is analogous to the vendor's lien, and is based upon a like reason,-that it is unconscionable for a vendee to retain a vendor's property and not pay the stipulated price for it. It can scarcely be maintained, on any sound principle, that a married woman could not bind land by a vendor's lien for the purchase money, without the written assent or concurrence of her husband. Ramage v. Towles, 85 Ala. 588, 5 South. Rep. 342; Crampton v. Prince, 83 Ala. 246, 3 South. Rep. 519. The enforcement of such a lien is in the nature of a proceeding in rem, rather than one in personam, especially as against the estates of married women. There is no more reason why a feme sole, who is brought within the terms of the statute, should enjoy the benefit of a mechanic's labor or materials, without paying for them, than one sui juris should perpetrate a like injustice. And so it has uniformly been held in this state since the enactment of the mechanic's lien law. In Ex parte Schmidt, 62 Ala. 252, it was decided that a married woman, by the contract of herself, or her husband, as agent or trustee, acting in her behalf, could create a mechanic's lien on her separate estate, although she was not capacitated to contract generally, and, in fact, was empowered by statute to bind her separate estate only for "articles of comfort and support of the household," suitable to the degree and condition in life of the family, and for which the husband would be responsible at common law. Code 1876, § 2711. This ruling was followed in Schmidt v. Joseph, 65 Ala. 476. These decisions construed section 3460 of the Code of 1876, which is the same in substance with section 3046 of the present Code, as expressly authorizing married women, eo nomine, to contract for a mechanic's or material-man's lien on the same terms, and in the same mode, as any other person sui juris may do. The Code of Missouri contains a statute of which the Alabama mechanic's lien law was originally a substantial copy. Section 3192 of that Code is the same, in substance, with section 3046 of the Alabama Code of 1886, with the exception that the words "owner or proprietor" are there made to include not only married women, but minors under 18 years of age. Code Mo. 1879, § 3192. The supreme court of Missouri has repeatedly construed that section as authorizing married women, otherwise laboring under disabilities of coverture, to make oral contracts binding, their separate estates by a mechanic's lien, or lien for building materials, furnished to construct improvements on land owned by them. Manufacturing Co. v. Gapen, 22 Mo.App. 397; Murphy v. Murphy, 15 Mo.App. 600. In New York, where a general statute gave a mechanic's lien against all owners of land who should become parties to certain contracts for labor or materials, it was held to embrace married women as well as others. It was observed that "there was no exception in terms in favor of married women, and there is none in the nature of the case, or in reason, policy, or convenience." Hauptman v. Catlin, 20 N.Y. 247. See, also, Loonie v. Hogan, 61 Amer. Dec. 693, note. There are decisions to the contrary, holding that a mechanic's lien will not attach to a married woman's separate estate under a...