Opinion
No. 30460.
February 27, 1933.
MECHANICS' LIENS.
Wife's property held not subject to lien for price of roof, placed on house under contract with husband without ascertaining wife's ownership.
APPEAL from circuit court of Simpson county. HON. EDGAR M. LANE, Judge.
W.M. Lofton, of Mendenhall, for appellant.
The undisputed evidence shows that Mrs. Lois E. Alexander was and is the owner of the premises, and it also shows that she objected to composition roofing that her husband bought and that he never bought it in her presence.
A conveyance, mortgage, deed of trust or other incumbrance where it is the property of either the husband or wife shall not be valid or binding unless signed by both husband and wife, and in this case, the contract for the purchase of this roofing was not signed by the wife, who was and is the owner of the premises, and certainly is not bound by it.
To fix a lien against the dwelling house and one acre of land for the sum of one hundred seventy-one dollars and fifty cents is to place an incumbrance against the home of this appellant, not only without her consent, but over her objection, and is contrary to all the law on the subject in the state of Mississippi.
Section 1780 of the Mississippi Code of 1930.
Chears Floor Screen Co. v. Gidden, 131 So. 426, and Stubbs et al. v. Capital Paint Glass Co. et al., 131 So. 806, cited by appellee are directly in point and decisive in this case, and under these two cases, the contention of appellant must prevail.
Alexander, Alexander Satterfield, of Jackson, for appellee.
There is no evidence denying the material facts upon which the plaintiffs obtained a peremptory instruction, i.e., that the contract was signed by Mr. Alexander acting for himself and his wife and as her agent, that he informed her that he had signed the contract for her and with such knowledge she did not make any objection of any kind or disclaim his authority to act as her agent; that she was present during the construction of the roof for approximately seven hours and acquiesced in its construction knowing that it was on reliance upon the signature by her agent.
Circumstances may be shown which will estop a married woman from denying that the contract for such work, though made by her husband alone, was made by her authority, or with her knowledge or consent. When such estoppel is established against a wife her property is bound for the mechanic's lien. A mere silent acquiescence, under some circumstances, will estop a wife from setting up her title in defense of an action brought to enforce a mechanic's lien, as when her husband contracts for improvements on her property with one who believes him to be the owner, and she, knowing that fact, permits the work to be done without disclosing her title.
18 R.C.L., 902, 903.
We would like to call the court's attention to two recent cases in which the right to a lien was denied, on the ground that there was no allegation or proof that the wife had acted in such a way that she would be estopped. These are the cases of Chears Floor Screen Co. v. Gidden et al., 131 So. 426, and Stubbs et al. v. Capital Paint Glass Co. et al., 131 So. 806.
In the latter case no facts were shown upon which estoppel might be predicated, the court saying, "This cause is controlled by the majority opinion rendered in the recent case of Chears Floor Screen Co. v. Mrs. Daisey Gidden et al., 131 So. 426, decided December 15, 1930. The facts in the two cases are substantially the same.
The Stubbs case is in point here as it holds that the written consent of the owner, required by section 2260, is not required if there are present facts whereby the owner is estopped to deny the agency. In fact, this section does not apply to the situation which arises in the case at bar, but this case is governed by Section 2259, Code of 1930.
The lien here sought to be established is purely a statutory lien and the right thereto is granted by the statute. Under the wording of the statute the owner of any lands may have his interest therein bound by an agent who may be authorized either expressly or impliedly.
Delta Lumber Co. v. Wall et ux., 119 Miss. 350, 80 So. 782.
There has been developed in the court of chancery the doctrine of equitable estoppel, a beneficent doctrine, which operates for the advancement of justice in proper cases, without deed or record; which takes hold of the conscience of a party and closes his mouth now, because he was silent when it was his duty to speak; and which will not tolerate a denial of his declarations or acts, on the faith of which others have engaged in important transactions.
Vicksburg R.R. Co. v. Ragsdale, 54 Miss. 200.
We respectfully submit that the case at bar falls directly within the principle announced by Ruling Case Law, and the announcements of our court with reference to estoppel. There can be no stronger case which might arise from estoppel by acquiescence in the exercise of agency, or the action by the materialman in reliance upon the acts and conduct of the wife.
Argued orally by Wm. Lofton, for the appellant, and J.C. Satterfield, for appellee.
This is an action seeking to establish a materialmen's lien upon a residence and one acre of land upon which the residence is situated. The property is owned by the wife, the appellant here, but the contract was made by the husband without the wife's consent. It is true that at the time the contract was made the wife knew that her husband and the salesman for appellee were discussing the subject, and that the wife then objected to a composition roof which was the kind of roof that was being offered by the salesman, and it is also true that the wife was on the same day advised by her husband that he had made a contract for the composition roof, and that on the next day, when the workmen of appellee appeared on the scene and began the work of placing the roof on the house, the wife made no objection, and was constantly present while the work was being done and until completed.
On the trial in the circuit court a peremptory instruction was granted in favor of the materialman, and the wife has appealed. To support the action of the court, the argument is again made, which has often heretofore been presented in similar cases, that the wife is estopped because she did not inform the salesman that the property belonged to her and not to her husband; that she did not inform the agent, whom she saw and knew was dealing with her husband that the husband would not be authorized to contract for her in respect to the matter under consideration, and that she did not object to the work while it was being done, although she was present. We have held in recent cases that the property of the wife is not liable under such a state of facts. Stubbs v. Capital Paint Glass Co., 160 Miss. 832, 131 So. 806, 135 So. 495; Chears Floor Screen Co. v. Gidden, 159 Miss. 288, 296, 131 So. 426, 428. In the Chears case, in quoting with approval from Wilson v. Andalusia Mfg. Co., 195 Ala. 477, 70 So. 140, 4 A.L.R. 1016, we used the following language: "In Wilson v. Andalusia Mfg. Co., supra, the wife not only knew of the repairs which her husband was having done on her property, and said nothing, but was constantly present while the work was being done, and gave directions as to how it should be done. In deciding the case, the court, while not commending the conduct of the wife and husband, said: `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 materialmen 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 the materialmen.'" That the materialman took no such precautions here, but was all along under the impression that the property was owned by the husband, and that the contract was for his sole account as principal, and that the materialman was looking to him alone for payment, is very satisfactorily evidenced by the fact that, when this suit was filed, it was instituted solely against the husband, with the allegation that he had made the contract for himself, and that it was his property that was liable for the materials furnished; and it was not until two months later that by an amendment the wife was brought in as a party and the allegation was then made that the contract was her contract, made by her husband as her agent.
It is said in the briefs, and was urged in the oral argument, in the further effort to hold the wife's property, that the husband, on the same afternoon that he made the contract, had told his wife that in doing so he had acted as her agent, and that, although the wife denied on the trial that her husband was authorized to act as her agent, she did not deny that her husband had informed her that he had in fact assumed to act as her agent in making the contract. Upon this basis it is argued that it was the duty of the wife seasonably to repudiate the assumption on the part of the husband to act as her agent, and that being informed by her husband as aforesaid, when she permitted the work to be done and the materials furnished without objection, she was thereupon estopped to say that her husband was not her agent in the matter.
If the facts as stated in the foregoing paragraph were verified by this record, it may be that the position taken by appellee in its said argument would be tenable; but a most diligent search of this record fails to disclose evidence that the husband made any such statement to his wife or that any language used by him to her carries any inference equal in actual or legal effect to the alleged statement attributed to the husband in the respect mentioned.
In the light of the latest decisions of this court on the point here involved, there is no liability against the wife or her property, and judgment to that effect will be entered here.
Reversed, and judgment here for appellant.