husband

(195 Ala. $77, 70 So. 140.) inally that of the wife, through denied efficacy to avert what proper herself, or her authorized agent, or caution and precaution on the part else the husband, or other agent, of the appellee would have made

,

must assume to con- impossible in this instance. The Mechanics' lien- tract for her and materialmen should have ascercontract by

in her own behalf, tained beforehand that the prowife's property and such contract posed improvement was to be of

.

be subsequently rat- property not owned by the husband. ified by her, with full notice or To their lack of care for their own knowledge of its nature. In the interests is to be attributed the opabsence of a contract of this char- portunity this husband and wife acter, no lien will attach to her have been afforded to receive the property. And where the credit is benefit of the improvement at the given solely to the husband, he expense in part of this appellant. If alone is bound, although it may ap- this court was empowered or free to pear that the wife knew that the give effect to an obvious moral oblibuilding or improvements were in gation on the part of this appellant, process of erection on her land, and it would enforce the demand this said nothing, or that she and other appellee justly seeks to have satismembers of the family afterwards fied. With the utmost reluctance, occupied the building as a dwell- the decree is reversed, and a decree ing."

will be here rendered dismissing The evidence does not admit of the bill. the conclusion that the wife author

Anderson, Ch. J., and Sayre and ized her husband to contract for the

Thomas, JJ., concur. materials for her. He did not assume or attempt to do so. The materialmen did not so attempt to en

NOTE. gage. The chancellor thought the evidence authorized the conclusion

The principle underlying the denial that the wife bound herself and her

in the reported case (WILSON V. ANproperty by ratification. There was

DALUSIA MFG. Co. ante, 1016) of a meerror here. Her acts in causing chanics' lien upon the wife's property changes of plans for the repairs for materials furnished under a conand her practically constant pres- tract made with the husband and upence at the building during its alter

on his credit alone, that ratification can ation and repair

only be effectual when the act is done -ratifcation could not be reof purchase.

by an agent avowedly for, or on acferred to her ratifi

count of, the principal, and not when cation of the contract for materials

it is done for, or on account of, the that was not made or attempted to

agent himself, is further exemplified be made in her name or for her.

at page 1052 of the annotation beginOn the contrary, that was made by

ning at page 1025, post, on the genher husband alone, on his own re

eral subject of "Enforceability of a sponsibility. The circumstances

mechanics' lien against property of a shown do not commend to this

married woman for work performed or court the conduct of this husband

materials furnished under a contract and wife, nor justify any satisfac- made with her husband.” tion here with the result to follow

Further, as to the probative signififrom our conclusion. Yet, the law's cance of the fact that credit was given long-established rules should not to the husband alone, see page 1051 of be wrenched from their effects or that note.

MRS. S. D. HINES et al., Appts.,

v. C. S. HOLLINGSWORTH et al., Doing Business as Hollingsworth-Young

Hardware Company.

Mechanics' lien - property of married woman - husband's order.

1. No promise on the part of a married woman to pay for materials purchased by her husband for use in improving her property, which will support a mechanics’ lien, can be implied where the title to the property is in a trustee, who has absolute power to manage the property.

[See note on this question beginning on page 1025.] property of married woman

power of trustee to create lien. materials furnished on husband's 4. A trustee of an express trust cancredit.

not create a mechanics' lien upon the 2. No lien can be placed on the prop

trust estate unless a power is conerty of a married woman for materials furnished her husband for improve

ferred upon him by statute or by a ments upon the property upon his own

court of competent jurisdiction, or credit, and under agreement that a lien there is something in the instrument shall not be placed upon the property. which created the trust which would [See 18 R. C. L. 901.]

empower him to do so. what interest attaches.

[See 18 R. C. L. 905.] 3. Generally a mechanic's or materialman's lien may be imposed upon

to what attaches. whatever interest the individual who 5. A mechanics’ lien attaches only contracts for the work or materials to the interest of the person who cremay own in the property upon which ates the lien, and only his interest can the work is done or materials are used, whether such interest is legal or

be subjected to a sale to satisfy the equitable.

lien. [See 18 R. C. L. 884.]

[See 18 R. C. L. 884, 885.]

APPEAL by defendants from a judgment of the Circuit Court for Warren County in favor of plaintiffs in an action brought for the enforcement of a materialman's lien and a sale of the property in satisfaction of the debt. Reversed.

The facts are stated in the opinion of the court.

Messrs. W. B. Gaines and W. Perry Hurt, J., delivered the opinion of Drake for appellants.

the court: Mr. Guy H. Herdman, for appellee: This action was instituted in the When material is used in the im

Warren circuit court by the appelprovement of a wife's property with

lees, C. S. Hollingsworth and Clive her knowledge and consent, the law

Young, who were partners under implies a contract and promise by her

the firm name of Hollingsworthto pay for the same. Tarr v. Muir, 107 Ky. 283, 53 S. W.

Young Hardware Company, for a 663; Johnson v. Bush, 23 Ky. L. Rep.

personal judgment against Josie U. 1399, 64 S. W. 628, 65 S. W. 158; Jef- Hines, and to enforce a materialferson v. Hopson Bros. 27 Ky. L. Rep.

man's lien, under chapter 79, Ken140, 84 S. W. 540; Salisbury v. Well- tucky Statutes, upon her house and man Electrical Co. 173 Ky. 462, 191 S. lot in the city of Bowling Green. W. 289.

By an amended petition, Samuel D. (178 Ky. 233, 198 8. W. 716.) Hines, the husband of appellant same were not furnished by them Josie U. Hines, and C. U. McElroy, with her knowledge and consent, trustee holding the legal title to the and that she had never agreed or property for the use and benefit of promised to pay for them, and that Josie U. Hines, were made parties. same were not used upon the propThe petition simply contented itself erty with her consent; and, further, with alleging that C. U. McElroy that Mrs. Meriwether had by will was the trustee who held the legal devised to a trustee for her use and title to the property under a deed benefit a certain sum of money, and executed to a former trustee, and that, in accordance with the terms was of record in the office of the of the will which created the trust, clerk of the county court of the the real property was purchased and county. The deed was not filed with conveyed by a deed to Warner U. the record, nor was there any show- Grider, the trustee, for her use and ing on the part of the plaintiffs benefit, and that, Grider having died, that the deed under which it was C. U. McElroy was duly appointed held was such in its terms as would such trustee, and was the holder permit the placing of a material- of the legal title to the property unman's lien upon the property by con- der the trust deed which had been tract, either with the trustee or executed by the vendors of the propwith the cestui que trust. Samuel erty to the former trustee, and that D. Hines and C. U. McElroy, the it was in accordance with the terms trustee, offered separate answers, of the will of the testatrix who had but they do not seem ever to have created the trust. The affirmative been filed. The record merely shows allegations in her answer and that the answers were offered, and amended answer were not denied. for what reason they were not filed The evidence for the appellees does not appear, as there were no tended to prove that they knew that objections appearing of record to Mrs. Hines was the owner of the their being filed. Not having been

property, and that in furnishing the filed, they were not replied to nor paints they did same upon her credit was there any further mention of and charged the same to her upon them in the record. The appellees, their accounts, although the conwho were the plaintiffs below, stated tract and arrangement to furnish that by a contract made with Josie the paints were entered into by one U. Hines, by and through her hus- Jarrett, who represented Peaslee band, Samuel D. Hines, as her Gaulbert Company, with Samuel D. agent, and by her knowledge and

Hines. It seems that the appellees consent, they furnished paints to the

were the parties who were authoramount of $123, which were used in

ized to furnish the paints manufacimproving the dwelling house in tured by Peaslee Gaulbert Company which she lived. Further allega- in Bowling Green, and that Jarrett tions were made to the effect that was an agent of the Peaslee Gaulthey had filed in due time and bert Company who had authority caused to be recorded in the proper

to make contracts for the sale of office the statement of their lien re- paints, but who sold them through quired by chapter 79, supra, and the appellees. The evidence offered this does not seem to be controvert- for appellants tended to prove that ed. They asked for an enforcement the paints were contracted for by of their lien, and a sale of the house

Samuel D. Hines upon his personal and grounds upon which it stood in credit, and that he notified Jarrett. satisfaction of their debt.

with whom he made the contract, Josie U. Hines filed an answer

that the materials were to be and an amended answer, in which charged to him and were to be used she denied that any contract had upon a house, the title to which was been made with her for furnishing held by a trustee for Josie U. Hines, the paints by the appellees, and that but that he requested Jarrett to sell

credit.

him the goods through the agency implied upon her part. The implied of the appellees, and thereafter he promise to pay for them upon her notified them of such facts. It was part arises out of the fact that she also proven for the appellants that was the owner of the property, and Grider, the trustee who was then had authority under law to create living, had furnished a portion of a materialman's and mechanic's lien the money to be used in improving

upon the property by her own conthe house, but had furthermore re- tract, and that the work and mafused to consent that the improve- terials were beneficial to the propments should be made upon the credit erty, and if the contract was made of Mrs. Hines, or that she should be

by the husband, and the improvein any wise responsible for them, ments made upon the property with and that the property should not be her knowledge and by her conencumbered on that account. The lot

sent, it was implied that she ratiupon which the house stood had a

fied the contract of her husband, front of 100 feet, and two dwelling and thereby promised and agreed houses stood thereon, but it was al

to pay for them. Under such leged by the plaintiffs that the prop- circumstances, however, if it could erty was not divisible.

be shown that the husband had The circuit court adjudged that contracted to have the improve the appellees recover a personal ments made upon his own credit, judgment against Josie U. Hines for and that the methe amount of their claim, and also chanics and materi. Mechanics' llenthat they have a lien to secure its

property of

almen should not married woman payment upon the house upon which

look to the lien upon furnished on

-materials the materials were used, and the

the property to se

husband's lands used with it, and adjudged a

cure their debt, no sale of a sufficiency of the lands to

implied promise arose to bind the satisfy the judgment. From this wife, and no lien could be placed upjudgment Josie U. Hines and her

on her property. In each of those trustee have appealed.

cases, the married woman' was the It is not considered necessary to

fee-simple title holder of the propdetermine whether a state of case

erty upon which the improvements is presented by the evidence which

were made, and had authority to would justify the rendition of a personal judgment against Josie U.

create a lien upon them by contract Hines, for the claim sued on, and a

for improvements upon the propjudgment enforcing a lien upon her erty. property, if she was the holder of As a general rule, a mechanic's the title to it, in accordance with the

or materialman's lien may be imprinciples adhered to in Tarr v.

posed upon whatever interest the inMuir, 107 Ky. 283, 53 S. W. 663; dividual who conJohnson v. Bush, 23 Ky. L. Rep. tracts for the work what interest

attaches. 1399, 64 S. W. 628, 65 S. W. 158; or materials may Jefferson v. Hopson Bros. 27 Ky. L. own in the property upon which the Rep. 140, 84 S. W. 540; and Salis

work is done or the materials used, burg v. Wellman Electrical Co. 173

whether the interest of such individKy. 462, 191 S. W. 289. In those ual is a legal or equitable one. The cases, where a married woman and lien may attach to an equitable inher property were held for improve- terest in property, unless there is . ments placed upon the property by some condition in the title under mechanics and materialmen, under which the property is held which contracts made with the husband, prohibits the person who owns the it was done upon the principle that, interest to place the lien upon it. A if a married woman accepts work trustee, having full power to manand materials used upon her prop- age, improve, and repair the propeity, a promise to pay for them is erty, may usually do so where the

-power of trustee to create llen,

(178 Ky. 233, 198 8. W. 716.) property is a trust estate, but the the one seeking to enforce a me

trustee of an ex- chanic's or materialman's lien, bepress trust cannot fore he can succeed in having an en

create a mechanics' forcement of the lien, to demonlien upon the trust estate, unless a strate to the court that the property power is conferred upon him by a is such that a lien may be imposed statute or by a court of competent upon it, and that the owner of the jurisdiction, or there is something interest sought to be subjected was in the instrument which created the authorized to create such a lien uptrust which would empower him to on it. Ordinarily and usually the do so. 18 R. C. L. 905; 27 Cyc. 54. reason for placing such property as Evidently a cestui que trust, who a dwelling in the hands of a trustee has not the legal title to the prop- is for the purpose of preventing the erty, and is denied its control and cestui que trust from disposing of management by the trust provi- it through a poor judgment, and to sions, should not be able to super- protect him against the designs and sede the trustee and title holder in

suggestions of improvident and imits management and control. The

prudent friends, as well as enemies, ownership required by statute, and against his own bad judgment which authorizes mechanics' liens, and extravagance. For such reason

' usually means the ownership of any its management and control are ininterest in property which the court trusted to the trustee, instead of may have power to order to be sold; the cestui que trust. If the terms but manifestly some limitations and of the instrument which creates the restrictions must exist upon the trust are such that its management power of the cestui que trust to cre- and control and authority to imate such liens upon the trust estate. prove it are given to the trustee, the It is also a rule which applies to me

cestui que trust is without power to chanics' liens that the lien attaches encumber it by a mechanic's or ma

only to the interest terialman's lien. In such states of -to what

of the person who case, if the cestui que trust can, attaches.

creates the lien, and with impunity, and without the cononly his interest can be subjected to sent and approval of the trustee, a sale to satisfy the lien. It is admit- create liens of any kind upon it, the ted in the instant case that the in- property may be sacrificed and the erest of Mrs. Hines in the property purposes of the trust defeated, and upon which it is sought to enforce the trustee rendered impotent to exthe lien is an equitable one,-that ecute the trust, and it would enable of a cestui que trust. The legal the cestui que trust to overthrow the title to the property is in the trustee, authority of the trustee, and the with whom it is not contended that very thing would happen which the any contract was made for the im- trustor undertook to prevent. provement of the property, and Southern Nat. L. Ins. Co. v. Ford, therefore the legal title cannot be 151 Ky. 480, 152 S. W. 243. Neither subjected to the lien, in any event, as the deed to the trustee nor the will the judgment attempts to do. The which created the trust are before duty of ascertaining the nature of us, and hence we cannot determine the interest and the title of the per- whether the trustee has authority, son who contracts to have the work without the aid of a court, to imdone or materials used upon prop- pose a mechanics' lien upon the erty which might be the basis of a property, or whether he can do so at materialman's lien, and to ascertain all; nor can the authority of the

, whether such person was authorized cestui que trust in the premises be to encumber it with such lien, is im- determined. The petition, however, posed upon the one furnishing the admits, and the answer avers, and materials, or else he will do so at his of which averment there is no de. risk. It is likewise necessary for nial, that the title to the property is