Wilkie v. Bray

• Decision Date: 30 June 1874
• Citation: Wilkie v. Bray, 71 N.C. 205 (N.C. 1874)
• Court: North Carolina Supreme Court
• Parties: L. D. WILKIE v. N. A. BRAY.

71 N.C. 205

L. D. WILKIE

v.N. A. BRAY.

Supreme Court of North Carolina.

June Term, 1874.

In order to create a lien in favor of a person who builds a house upon the land of another, the circumstances must be such as to first create the relation of debtor and creditor; and then it is for the debt that he has a lien.

CIVIL ACTION to enforce a mechanics' lien, commenced in a Justice's Court against the present defendant and one Charles Bray, and from thence removed by recordari to the Superior Court of CRAVEN county, where it was tried before Clarke, J., at Spring Term, 1874.

The facts are fully stated in the opinion delivered by Justice READE.

Below the plaintiff had judgment, from which defendant appealed.

Hubbard, Green and Lehman, for appellant .

Haughton, Seymour, Justice and Smith & Strong, contra .

READE, J.

In 1870 the defendant leased to his son, Charles Bray, a tract of land for the year 1871. And the plaintiff and said Charles Bray entered into a copartnership to raise a crop on said land in 1871. A part of the agreement on the part of the plaintiff was that he would “furnish materials and labor for the erection of a house for Charles Bray to live in on the farm.” The plaintiff did furnish the materials, &c., and the house was built in October, 1870, before the lease commenced. And now the plaintiff claims a lien on the land for the materials, & c., under the act of 1868-'70, chap. 206, sec. 1, as follows:

“Every building built, rebuilt or improved, together with the necessary lots on which said building may be situated, and every lot, farm or vessel, or any kind of property not herein enumerated, shall be subject to a lien for the payment of all debts contracted for work done on the same, or materials furnished.”

The language of the statute is very comprehensive; and it is clear that if the house had been built under contract with the defendant, either express or implied, the lien would exist; but under the principle that no man can make another his debtor without his consent, the lien does not exist without a contract. It is true the contract may be implied, as if the house be built with his knowledge, and for his advantage, and without objection. It appears that the defendant had knowledge of the building; but then it appears, also, that “before it was commenced he notified the defendant that he was opposed to the building being put on his land.” So it is put in the case for this Court, probably “defendant” is put for plaintiff, or else it must refer...