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owners retained the $250 paid by Hathaway.

A few days prior to the execution of the agreement Hathaway contracted with the petitioners for extensive repairs and alterations upon the house, representing that he was the owner. The petitioners entered upon the premises and made the repairs and alterations. April 3, 1914, a second contract was made by Hathaway with the petitioner the Roxbury Painting & Decorating Company to do additional papering and painting, which work was performed. Work on the house was discontinued by the petitioner Duff on April 15, 1914, by the petitioner Lewis on April 18, 1914, and by the petitioner the Roxbury Painting & Decorating Company on April 24, 1914. There was evidence that Miss Nute was on the premises March 28, 1914, when the work was in progress, and when asked if "she wanted to come in" said "No,' that

she would just walk around the house," and again on April 11th she visited the premises and then went through the building and remarked "how beautiful the house looked and what a great deal of work was put in the house." Hathaway in his answers to interrogatories stated that "Miss Nute visited the place while the repairs were going on four or five times," and "spoke of the great change he had made in the appearance of the place; she said it looked like a palace;" that "he employed other mechanics to do other work on the house, amounting to about $1,700;" and that "the work of the petitioners was necessary to make the house habitable."

Under Rev. Laws, chap. 197, § 1, a lien may be established for labor performed and materials furnished in the repair of a building by virtue of an agreement with "or by consent of the owner of such building," or "of a person rightfully acting for such owner in procuring or furnishing such labor or materials." By the contract of sale dated March 25, 1914, the owners

.

were to convey the premises to Hathaway on or before April 20, 1914; and if this contract was not subsequently modified, then the owners did not agree that Hathaway could charge them with responsibility for his contracts; and the work was not done with their consent within the meaning of the statute, and he was not rightfully acting for them in procuring or furnishing such labor or material. Mere notice that he intended to repair the house, and knowledge of the progress of the work and appreciation expressed over the improvements made, were not enough to establish a lien on the owners' estate. When an owner of land agrees to sell it, and allows one who has agreed to buy it to take possession of the property, the owner does not thereby authorize such person to impose a lien on the land, unless by implication the

lien-authority

owner authorized Mechanics' the purchaser to of purchaser contract for the re- tory contract. pair and alteration

under execu

of the building. As stated in Hayes v. Fessenden, 106 Mass. 228, at page 230: "Their [the owners'] contract for a sale of the land to Fessenden, notice that he intended. to build upon it, and knowledge of the progress of the work, charged them with no responsibility for it to anyone." Saunders v. Bennett, 160 Mass. 48, 39 Am. St. Rep. 456, 35 N. E. 111; Courtemanche v. Blackstone Valley Street R. Co. 170 Mass. 50, 64 Am. St. Rep. 275, 48 N. E. 937.

The petitioners contend that the contract of sale of March 25, 1914, was not the final agreement between Hathaway and the owners; that the owners knew that Hathaway could not carry out this agreement, and agreed that he should make the repairs and place a mortgage on the property, and pay them the purchase price out of the money secured by the mortgage. To support this contention they offered the evidence of Hathaway, that he talked with Miss Nute before and

(Mass., 123 N. E. 391.)

after March 25, 1914, about the necessity "of raising money required to purchase said estate by placing a mortgage thereon with some bank," and that Miss Nute agreed "to my raising a mortgage on the place, providing they were paid in full," and it was agreed "that I would repair the property in order to raise money to pay them off in full." "The house was unfit for anyone to live in and we agreed that I would put it in condition; such would allow my raising funds to pay them off in full;" that he told Miss Nute "about the alterations that were being made, both before the agreement was signed and afterwards. "He explained fully to Miss Nute about his repairing the house and putting it in suitable condition to live in, and Miss Nute agreed with him fully as to all his plans, and even with a knowledge that he was going to obtain a mortgage in the bank, that he also told her he "had taken it up with the Five Cents Savings Bank in Boston and had obtained figures from the Roxbury Decorating Company in regard to decorating the place;" that he first saw Miss Nute on March 10, 1914, and saw her almost daily for over a month after that date.

William H. Fanning, treasurer of the Roxbury Painting & Decorating Company, testified that on April 11, 1914, he called on Miss Nute and wanted to know if Hathaway had a deed of the property. She told him he did not have a deed, that he had agreed to purchase the property, and paid a substantial amount down, and "was negotiating for a mortgage from the bank, in order that he might carry through the deal." He further testified: "I told her we were there doing work, painting, and had a contract with Mr. Hathaway, two contracts, one for the inside and one for the outside." She said she expected to hear from Hathaway every day, but up to that time he had not called on her; that "he was negotiating with the bank for a mortgage in order

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that he might live up to the terms of
his agreement and carry through
the deal of the property, and she ex-
pected to hear from him most any
day;" that "Hathaway would have
to put the house in condition
in order to get the money from the
bank, and he was making the re-
pairs." He also testified that Miss
Nute did not tell him to cease work
on the building, and that one of his
workmen reported to him that a
couple of days after this interview
Miss Nute was about the premises.

Clarence P. Adams, a foreman employed by the Roxbury Painting & Decorating Company, testified that about April 11th Miss Nute came to the premises and went through the building; that "she asked a carpenter what he was going to do with the bathroom floor," and "he told her that he was waiting for the electricians to finish wiring and he would put the floor down." Much of this evidence was denied by Miss Nute. She testified that before the agreement of March 25th was signed she gave the key to Hathaway to look over the premises, but was unable to get it back from him; that he represented to her that he was a contractor and had employees who were idle and asked if they could clean up the house; that she never consented to his making any repairs on the house and first discovered that the men were not Hathaway's employees when Mr. Fanning called on her. She further testified that there was no extension of the agreement and no consent that Hathaway should mortgage the premises; nor was she informed or had any knowledge that he could not carry out the agreement.

The counsel for the owners "duly objected to the admissibility of so much of the foregoing testimony as related to the placing of a mortgage upon the premises by a bank, or to the making of repairs or alterations upon the premises, and to communications by the witness with Miss Nute in regard to the same, and the court excluded, subject to the plain

tiff's exceptions duly saved, so much thereof as related to matters occurring prior to the signing of the contract, but, subject to the respondents' said objections and exceptions, admitted the remainder of said evidence objected to."

Contract

The parties could modify the original contract by modification- a subsequent parol agreement. Gilman

parol.

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& Son v. Turner Tanning Machinery Co. Mass., 122 N. E. 747. The evidence of what was said by Miss Nute after the written contract was made tended to show that the original contract was so modified by agreement of Hathaway and Miss Nute; and if the jury believed this evidence they could have found that Hathaway was to make the repairs in order that he might secure a mortgage on the premises and pay the owners the entire purchase price in money, and that Miss Nute, by this arrangement, consented to

Mechanics' lien-consent of owner to mortgageexecutory purchaser.

Hathaway's making the contract for the labor performed and materials furnished, within the meaning of the Mechanics' Lien Statute (Rev. Laws, chap. 197). chap. 197). Davis v. Humphrey, 112 Mass. 309; Carew v. Stubbs, 155 Mass. 549, 30 N. E. 219; Brown v. Haddock, 199 Mass. 480, 85 N. E. 573.

If this evidence showing that the written contract was qualified by a subsequent parol agreement were believed, a lien might be established on the interest of Miss Nute in the property, although there was no evidence to show that Mrs. Young was in any way indebted

Tenant in commonconsent to mechanics'

lien.

to the petitioners. She was a sister of Miss Nute, and while the latter had control and management of the property and collected the rents, Mrs. Young resided in another city and knew nothing of the repairs or alterations, and made no agreement with Hathaway except the written agreement of March 25th; the statement of Miss Nute

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While one tenant in common cannot encumber the estate of his cotenant (Muskeget Island Club v. Prior, 228 Mass. 95, 117 N. E. 2), the interest of Miss Nute could be conveyed or taken on execution, and a lien could be established on her interest in the property. We can see no valid objection to establishing a mechanics' lien on the interest of one tenant in common of real estate. See Kirby v. Tead, 13 Met. 149; Webber Lumber & Supply Co. v. Erickson, 216 Mass. 81, 102 N. E. 940; Mellor v. Valentine, 3 Colo. 260; Hillburn v. O'Barr, 19 Ga. 591.

Nor do we think it fatal to the petitioners that they have proceeded against both owners and have described them as such, and in their petition state that the labor and materials were supplied with their consent. There is nothing in the statute which prevents a creditor who pe- ceeding against titions to establish

-effect of pro

all owners.

a lien against two or more tenants in common of real estate, from securing his lien upon the interest of the tenant who makes the contract or who authorizes the improvement to be made. The share of that tenant may be held for the work thus authorized and a lien established against it. See in this connection Taft v. Church, 164 Mass. 504, 41 N. E. 671; Washburn v. Burns, 34 N. J. L. 18. It follows that in the case of Mrs. Harriet E. Young the petitioners' exceptions are overruled; in the case of Miss Marietta Nute they are sustained.

So ordered.

ANNOTATION.

Knowledge of owner of improvements or repairs, intended or in process under orders of lessee or vendee, as "consent," which will subject his interest to mechanics' liens.

I. Scope, 685.

II. Insufficiency of knowledge to show

consent:

a. General principles, 685.

b. Illustrative cases:

1. Improvements or repairs by lessee, 687.

1. Scope.

This note is limited to cases arising under statutory provisions which make the right to a lien dependent on the owner's "consent." It does not embrace questions as to the effect of the owner's knowledge under statutes of a different character, such as statutes giving liens for improvements made under contract with the owner or his agent, statutes giving liens on the interest of the one "causing" the improvement to be made, statutes giving liens for improvements made at the "request" of the owner, or statutes expressly giving a lien in case the owner has knowledge of the improvement unless he gives a specified notice of nonliability. A number of cases under the Illinois statute, which gives a lien to anyone doing work under a contract with the owner or with one whom the owner has authorized or "knowingly permitted" to improve the property, have, however, been referred to, though it is possible that the citations on this point are not exhaustive. The claim that a lessor or vendor consented to an improvement by his lessee or vendee, so as to subject his interest to a mechanics' lien, is almost always predicated on facts from which it would probably be possible to draw the inference that the lessor or vendor must have had knowledge of the improvement. It is not the design of this note to refer to all of the cases in which that inference might have been drawn, but to refer only to those cases in which the knowledge of the lessor or vendor was the fact or one of the facts relied on as

II. b-continued.

2. Improvements or repairs by vendee, 689.

c. Contrary decisions, 690. III. Consent shown by knowledge in connection with other facts, 691. IV. When does owner "knowingly permit" improvements, 694.

showing consent. It should, of course, be borne in mind that this note does not embrace questions as to the right to a lien, where improvements are made by one person on the property of another, unless the relation between them is that of lessor and lessee or vendor and vendee,

II. Insufficiency of knowledge to show consent.

a. General principles.

At the present time it is apparently settled in the jurisdictions where this question has arisen that mere knowledge on the part of the vendor or lessor that improvements are contemplated or being made by his lessee or vendee, and failure on his part to object thereto, is not such consent as will support a mechanics' lien against his interest; and this is especially true where the lessor or vendor would have no right to prevent the making of the improvement, and will receive no benefit therefrom.

Maine.-Hanson v. News Pub. Co. (1902) 97 Me. 99, 53 Atl. 990; York v. Mathis (1907) 103 Me. 67, 68 Atl. 746.

Massachusetts.-Francis v. Sayles (1869) 101 Mass. 435; Hayes v. Fessenden (1870) 106 Mass. 228; Conant v. Brackett (1873) 112 Mass. 18; Saunders v. Bennett (1893) 160 Mass. 48, 39 Am. St. Rep. 456, 35 N. E. 111; Courtemanche v. Blackstone Valley Street R. Co. (1898) 170 Mass. 50, 64 Am. St. Rep. 275, 48 N. E. 937; ROXBURY PAINTING & DECORATING Co. v. NUTE (reported herewith) ante, 680.

Missouri.-Todd v. Duncan (1880)

9 Mo. App. 417.

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New York. De Klyn v. Gould (1901) 165 N. Y. 282, 80 Am. St. Rep. 719, 59 N. E. 95; Rice v. Culver (1902) 172 N. Y. 60, 64 N. E. 761, reversing in part (1901) 57 App. Div. 552, 68 N. Y. Supp. 24, 9 N. Y. Anno. Cas. 286; Beck v. Catholic University (1902) 172 N. Y. 387, 60 L.R.A. 317, 65 N. E. 204; Havens v. West Side Electric Light & P. Co. (1892) 49 N. Y. S. R. 771, 20 N. Y. Supp. 764, affirmed in (1894) 143 N. Y. 632, 37 N. E. 827; McCauley v. Hatfield (1894) 59 N. Y. S. R. 552, 28 N. Y. Supp. 648; Vosseller v. Slater (1898) 25 App. Div. 368, 49 N. Y. Supp. 478, affirmed in (1900) 163 N. Y. 564, 57 N. E. 1128; Sunshine v. Morgan (1902) 39 Misc. 778, 81 N. Y. Supp. 278; Eichler v. Warner (1905) 46 Misc. 246, 91 N. Y. Supp. 793; Garber v. Spivak (1909) 65 Misc. 37, 119 N. Y. Supp. 269.

Wisconsin.-Clark v. North (1907) 131 Wis. 599, 11 L.R.A. (N.S.) 764, 111 N. W. 681, 11 Ann. Cas. 1080.

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Consent, within the meaning of the statute, means conduct expressive of consent. Saunders v. Bennett (1893) 160 Mass. 48, 39 Am. St. Rep. 456, 35 N. E. 111.

It implies a power of choice,-a power to give or withhold consent; and where a vendor or lessor has no power to require the vendee or lessee to build, alter, and repair, and no power to prevent him from doing so, his interest cannot be charged with a lien merely because, knowing that the work is to be done, and is being done, he does not try to stop what he has no power to prevent; especially where he will receive no ultimate benefit from the improvement. Havens v. West Side Electric Light & P. Co. (1892) 49 N. Y. S. R. 771, 20 N. Y. Supp. 764, affirmed in (1894) 143 N. Y. 632, 37 N. E. 827; Vosseller v. Slater (1898) 25 App. Div. 368, 49 N. Y.

Supp. 478, affirmed in (1900) 163 N. Y. 564, 57 N. E. 1128.

To require owner to dissent to the making of repairs by the tenant which the tenant had the lawful right to make, in order to repel inference of consent, is an absurdity of which the law is not guilty. McCauley v. Hatfield (1894) 59 N. Y. S. R. 552, 28 N. Y. Supp. 648. Consent is not a vacant or neutral attitude in respect of a question of such material interest to the property owner, but is affirmative in its nature, and should not be implied contrary to the obvious truth unless, upon equitable principles, the owner should be estopped from asserting the truth. De Klyn v. Gould (1901) 165 N. Y. 282, 80 Am. St. Rep. 719, 59 N. E. 95; Eichler v. Warner (1905) 46 Misc. 246, 91 N. Y. Supp. 793; Clark v. North (1907) 131 Wis. 599, 11 L.R.A.(N.S.) 764, 111 N. W. 681, 11 Ann. Cas. 1080.

An owner must be either an affirmative factor in procuring the improvement to be made, or, having possession and control of the premises, must assent to the improvement in the expectation that he will reap the benefit of it. Rice v. Culver (1902) 172 N. Y. 60, 64 N. E. 761, reversing in part (1901) 57 App. Div. 552, 68 N. Y. Supp. 24, 9 N. Y. Anno. Cas. 286; Garber v. Spivak (1909) 65 Misc. 37, 119 N. Y. Supp. 269.

Consent means the unity of opinion; the accord of minds; to think alike; to be of one mind. It involves the presence of two or more persons, for without at least two persons there cannot be a unity of opinion or an accord of mind, or any thinking alike. A statute using the words "by the consent of the owner of the land" means that the person rendering the service or furnishing the material and the owner of the land on which the building stands must be of one mind in respect to it. Clark v. North (1907) 131 Wis. 599, 11 L.R.A. (N.S.) 764, 111 N. W. 681, 11 Ann. Cas.. 1080, quoting from Huntley v. Holt, 58 Conn. 445, 9 L.R.A. 111, 20 Atl. 469.

Under a statute giving a lien for work done at the request of the owner, and on his credit, or on his behalf, or with his privity or consent, or for his

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