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(195 Ala. 477, 70 So. 140.)

inally that of the wife, through herself, or her authorized agent, or else the husband, or other agent, must assume to con

contract by husbandliability of wife's property.

Mechanics' lien- tract for her and in her own behalf, and such contract be subsequently ratified by her, with full notice or knowledge of its nature. In the absence of a contract of this character, no lien will attach to her property. And where the credit is given solely to the husband, he alone is bound, although it may appear that the wife knew that the building or improvements were in process of erection on her land, and said nothing, or that she and other members of the family afterwards occupied the building as a dwelling.'

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The evidence does not admit of the conclusion that the wife authorized her husband to contract for the materials for her. He did not assume or attempt to do so. The materialmen did not so attempt to engage. The chancellor thought the evidence authorized the conclusion that the wife bound herself and her property by ratification. There was error here. Her acts in causing changes of plans for the repairs and her practically constant presence at the building during its alteration and repair -ratification could not be reof purchase. ferred to her ratification of the contract for materials that was not made or attempted to be made in her name or for her. On the contrary, that was made by her husband alone, on his own responsibility. The circumstances shown do not commend to this court the conduct of this husband and wife, nor justify any satisfaction here with the result to follow from our conclusion. Yet, the law's long-established rules should not be wrenched from their effects or

denied efficacy to avert what proper caution and precaution on the part of the appellee would have made impossible in this instance. The materialmen should have ascertained beforehand that the proposed improvement was to be of property not owned by the husband. To their lack of care for their own interests is to be attributed the opportunity this husband and wife have been afforded to receive the benefit of the improvement at the expense in part of this appellant. If this court was empowered or free to give effect to an obvious moral obligation on the part of this appellant, it would enforce the demand this appellee justly seeks to have satisfied. With the utmost reluctance, the decree is reversed, and a decree will be here rendered dismissing the bill.

Anderson, Ch. J., and Sayre and Thomas, JJ., concur.

NOTE.

The principle underlying the denial in the reported case (WILSON V. ANDALUSIA MFG. Co. ante, 1016) of a mechanics' lien upon the wife's property for materials furnished under a contract made with the husband and upon his credit alone, that ratification can only be effectual when the act is done by an agent avowedly for, or on account of, the principal, and not when it is done for, or on account of, the agent himself, is further exemplified at page 1052 of the annotation beginning at page 1025, post, on the general subject of "Enforceability of a mechanics' lien against property of a married woman for work performed or materials furnished under a contract Imade with her husband."

Further, as to the probative significance of the fact that credit was given to the husband alone, see page 1051 of that note.

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

V.

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

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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 materials furnished on husband's credit.

2. No lien can be placed on the property of a married woman for materials furnished her husband for improvements upon the property upon his own credit, and under agreement that a lien shall not be placed upon the property. [See 18 R. C. L. 901.]

- what interest attaches.

3. Generally a mechanic's or materialman's lien may be imposed upon whatever interest the individual who contracts for the work or materials may own in the property upon which the work is done or materials are used, whether such interest is legal or equitable.

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

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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
Drake for appellants.

Mr. Guy H. Herdman, for appellee: When material is used in the improvement of a wife's property with her knowledge and consent, the law implies a contract and promise by her to pay for the same.

Tarr v. Muir, 107 Ky. 283, 53 S. W. 663; Johnson v. Bush, 23 Ky. L. Rep. 1399, 64 S. W. 628, 65 S. W. 158; Jefferson v. Hopson Bros. 27 Ky. L. Rep. 140, 84 S. W. 540; Salisbury v. Wellman Electrical Co. 173 Ky. 462, 191 S. W. 289.

Hurt, J., delivered the opinion of the court:

This action was instituted in the Warren circuit court by the appellees, C. S. Hollingsworth and Clive Young, who were partners under the firm name of HollingsworthYoung Hardware Company, for a personal judgment against Josie U. Hines, and to enforce a materialman's lien, under chapter 79, Kentucky Statutes, upon her house and lot in the city of Bowling Green. By an amended petition, Samuel D.

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(178 Ky. 233, 198 S. W. 716.)

Hines, the husband of appellant Josie U. Hines, and C. U. McElroy, trustee holding the legal title to the property for the use and benefit of Josie U. Hines, were made parties. The petition simply contented itself with alleging that C. U. McElroy was the trustee who held the legal title to the property under a deed executed to a former trustee, and was of record in the office of the clerk of the county court of the county. The deed was not filed with the record, nor was there any showing on the part of the plaintiffs that the deed under which it was held was such in its terms as would permit the placing of a materialman's lien upon the property by contract, either with the trustee or with the cestui que trust. Samuel D. Hines and C. U. McElroy, the trustee, offered separate answers, but they do not seem ever to have been filed. The record merely shows that the answers were offered, and for what reason they were not filed does not appear, as there were no objections appearing of record to their being filed. Not having been filed, they were not replied to nor was there any further mention of them in the record. The appellees, who were the plaintiffs below, stated that by a contract made with Josie U. Hines, by and through her husband, Samuel D. Hines, as her agent, and by her knowledge and consent, they furnished paints to the amount of $123, which were used in improving the dwelling house in which she lived. Further allegations were made to the effect that they had filed in due time and caused to be recorded in the proper office the statement of their lien required by chapter 79, supra, and this does not seem to be controverted. They asked for an enforcement of their lien, and a sale of the house and grounds upon which it stood in satisfaction of their debt.

Josie U. Hines filed an answer and an amended answer, in which she denied that any contract had been made with her for furnishing the paints by the appellees, and that

same were not furnished by them with her knowledge and consent, and that she had never agreed or promised to pay for them, and that same were not used upon the property with her consent; and, further, that Mrs. Meriwether had by will devised to a trustee for her use and benefit a certain sum of money, and that, in accordance with the terms of the will which created the trust, the real property was purchased and conveyed by a deed to Warner U. Grider, the trustee, for her use and benefit, and that, Grider having died, C. U. McElroy was duly appointed such trustée, and was the holder of the legal title to the property under the trust deed which had been executed by the vendors of the property to the former trustee, and that it was in accordance with the terms of the will of the testatrix who had created the trust. The affirmative allegations in her in her answer and amended answer were not denied.

The evidence for the appellees tended to prove that they knew that Mrs. Hines was the owner of the property, and that in furnishing the paints they did same upon her credit and charged the same to her upon their accounts, although the contract and arrangement to furnish the paints were entered into by one Jarrett, who represented Peaslee Gaulbert Company, with Samuel D. Hines. It seems that the appellees were the parties who were authorized to furnish the paints manufactured by Peaslee Gaulbert Company in Bowling Green, and that Jarrett was an agent of the Peaslee Gaulbert Company who had authority to make contracts for the sale of paints, but who sold them through the appellees. The evidence offered for appellants tended to prove that the paints were contracted for by Samuel D. Hines upon his personal credit, and that he notified Jarrett, with whom he made the contract, that the materials were to be charged to him and were to be used upon a house, the title to which was held by a trustee for Josie U. Hines. but that he requested Jarrett to sell

him the goods through the agency of the appellees, and thereafter he notified them of such facts. It was also proven for the appellants that Grider, the trustee who was then living, had furnished a portion of the money to be used in improving the house, but had furthermore refused to consent that the improvements should be made upon the credit of Mrs. Hines, or that she should be in any wise responsible for them, and that the property should not be encumbered on that account. The lot upon which the house stood had a front of 100 feet, and two dwelling houses stood thereon, but it was alleged by the plaintiffs that the property was not divisible.

The circuit court adjudged that the appellees recover a personal judgment against Josie U. Hines for the amount of their claim, and also that they have a lien to secure its payment upon the house upon which the materials were used, and the lands used with it, and adjudged a sale of a sufficiency of the lands to satisfy the judgment. From this judgment Josie U. Hines and her trustee have appealed.

It is not considered necessary to determine whether a state of case is presented by the evidence which would justify the rendition of a personal judgment against Josie U. Hines, for the claim sued on, and a judgment enforcing a lien upon her property, if she was the holder of the title to it, in accordance with the principles adhered to in Tarr v. Muir, 107 Ky. 283, 53 S. W. 663; Johnson v. Bush, 23 Ky. L. Rep. 1399, 64 S. W. 628, 65 S. W. 158; Jefferson v. Hopson Bros. 27 Ky. L. Rep. 140, 84 S. W. 540; and Salisburg v. Wellman Electrical Co. 173 Ky. 462, 191 S. W. 289. In those cases, where a married woman and her property were held for improvements placed upon the property by mechanics and materialmen, under contracts made with the husband, it was done upon the principle that, if a married woman accepts work and materials used upon her property, a promise to pay for them is

implied upon her part. The implied promise to pay for them upon her part arises out of the fact that she was the owner of the property, and had authority under law to create a materialman's and mechanic's lien upon the property by her own contract, and that the work and materials were beneficial to the property, and if the contract was made by the husband, and the improvements made upon the property with her knowledge and by her consent, it was implied that she ratified the contract of her husband, and thereby promised and agreed to pay for them. Under such circumstances, however, if it could be shown that the husband had contracted to have the improvements made upon his own credit, and that the me

property of

-materials

furnished on husband's credit.

chanics and materi- Mechanics' lienalmen should not married woman look to the lien upon the property to secure their debt, no implied promise arose to bind the wife, and no lien could be placed upon her property. In each of those cases, the married woman' was the fee-simple title holder of the property upon which the improvements were made, and had authority to create a lien upon them by contract for improvements upon the property.

As a general rule, a mechanic's or materialman's lien may be imposed upon whatever interest the individual who con

tracts for the work what interest or materials may

attaches.

own in the property upon which the work is done or the materials used, whether the interest of such individual is a legal or equitable one. The lien may attach to an equitable interest in property, unless there is some condition in the title under which the property is held which prohibits the person who owns the interest to place the lien upon it. A trustee, having full power to manage, improve, and repair the property, may usually do so where the

-power of trustee to create lien.

(178 Ky. 233, 198 S. W. 716.)

property is a trust estate, but the trustee of an expréss trust cannot create a mechanics' lien upon the trust estate, unless a power is conferred upon him by a statute or by a court of competent jurisdiction, or there is something in the instrument which created the trust which would empower him to do so. 18 R. C. L. 905; 27 Cyc. 54. Evidently a cestui que trust, who has not the legal title to the property, and is denied its control and management by the trust provisions, should not be able to supersede the trustee and title holder in its management and control. The ownership required by statute, which authorizes mechanics' liens, usually means the ownership of any interest in property which the court may have power to order to be sold; but manifestly some limitations and restrictions must exist upon the power of the cestui que trust to create such liens upon the trust estate. It is also a rule which applies to mechanics' liens that the lien attaches

-to what attaches.

only to the interest of the person who creates the lien, and only his interest can be subjected to a sale to satisfy the lien. It is admitted in the instant case that the inerest of Mrs. Hines in the property upon which it is sought to enforce the lien is an equitable one,-that of a cestui que trust. The legal title to the property is in the trustee, with whom it is not contended that any contract was made for the improvement of the property, and therefore the legal title cannot be subjected to the lien, in any event, as the judgment attempts to do. The duty of ascertaining the nature of the interest and the title of the person who contracts to have the work done or materials used upon property which might be the basis of a materialman's lien, and to ascertain whether such person was authorized to encumber it with such lien, is imposed upon the one furnishing the materials, or else he will do so at his risk. It is likewise necessary for

1021

the one seeking to enforce a mechanic's or materialman's lien, before he can succeed in having an enforcement of the lien, to demonstrate to the court that the property is such that a lien may be imposed upon it, and that the owner of the interest sought to be subjected was authorized to create such a lien upon it. Ordinarily and usually the reason for placing such property as a dwelling in the hands of a trustee is for the purpose of preventing the cestui que trust from disposing of it through a poor judgment, and to protect him against the designs and suggestions of improvident and imprudent friends, as well as enemies, and against his own bad judgment and extravagance. For such reason its management and control are intrusted to the trustee, instead of If the terms the cestui que trust.

of the instrument which creates the trust are such that its management and control and authority to improve it are given to the trustee, the cestui que trust is without power to encumber it by a mechanic's or materialman's lien. In such states of case, if the cestui que trust can, with impunity, and without the consent and approval of the trustee, create liens of any kind upon it, the property may be sacrificed and the purposes of the trust defeated, and the trustee rendered impotent to execute the trust, and it would enable the cestui que trust to overthrow the authority of the trustee, and the very thing would happen which the trustor undertook to prevent. Southern Nat. L. Ins. Co. v. Ford, 151 Ky. 480, 152 S. W. 243. Neither the deed to the trustee nor the will which created the trust are before us, and hence we cannot determine whether the trustee has authority, without the aid of a court, to impose a mechanics' lien upon the property, or whether he can do so at all; nor can the authority of the cestui que trust in the premises be determined. The petition, however, admits, and the answer avers, and of which averment there is no denial, that the title to the property is

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