Opinion
(Filed 13 May, 1902.)
1. Mechanic's Lien — Notice — Contractor.
Only the original contractor can file the notice of a mechanic's lien.
2. Husband and Wife — Married Women — Separate Estate — Mechanic's Lien.
A draft drawn on a man and his wife by a contractor and accepted by them in writing, with privy examination of the wife, the contractor having agreed to build house on land of wife, does not constitute a charge on the separate estate of the wife.
NOTE. — It is otherwise now. Rev., 2016; Finger v. Hunter, post, 529.
ACTION by Zachary Zachary against D. R. Perry and Katie D. Perry, his wife, heard by Starbuck, J., at April Term, 1901, of WAYNE.
This case was brought by appeal from the court of a justice of the peace to the Superior Court of Wayne County, and was heard upon the following agreed facts:
1. That at the times hereinafter mentioned the defendant Katie D. Perry was a married woman, and was not a free trader.
2. That on 10 October, 1898, the defendants, D. R. Perry and Katie D. Perry, signed and delivered to one J. W. Robinson the paper-writing hereto annexed and made part of this statement, marked "A," which paper-writing was afterwards registered in Wayne County. This admission is made subject to the objection that said paper is not admissible in evidence on account of alleged defective probate and registration.
3. That the house referred to in said paper-writing was to be erected upon the lands of said Katie D. Perry.
4. That on 16 November, 1898, the said J. W. Robinson was (290) indebted to the plaintiffs in the sum of $84.98, and on that date he executed and delivered to the plaintiffs paper-writing hereto annexed and made part of this statement, marked "B," which paper-writing was registered in Wayne County.
5. That on said paper-writing is written, "Accepted and payable on 17 December, 1898," which indorsement was signed by the defendants, D. R. Perry and Katie D. Perry.
6. That on 8 March, 1899 the plaintiffs filed in the office of the Clerk of the Superior Court of Wayne County, for the purpose of establishing a lien, paper-writing hereto annexed and made a part of this statement, marked "C," which paper-writing was filed within twelve months from the time the said Robinson completed the work that he did on said house.
7. That the materials furnished by the plaintiff were used by the said Robinson in the construction of the building referred to in paper-writing marked "A," upon the land of the defendant Katie D. Perry.
8. That no part of said sum of $84.98 has been paid to the plaintiffs; that at the time paper marked "A" was executed, defendants owed to Robinson $84.98 under their contract with him; that after said paper marked "A" had been delivered to plaintiffs, said Robinson abandoned his contract with the defendants, and on account of his breach of contract there would be nothing due by the defendants to Robinson. This admission is made by the defendants without admitting or intending to admit any liability, personal or otherwise, upon the part of the feme defendant.
There was a judgment for defendants, and plaintiffs appealed.
Douglass Simms for plaintiffs.
Allen Dortch for defendants.
CLARK, J., dissenting.
The attempt to file (291) notice of a lien by Zachary Zachary against the property of the feme defendant must fail of its purpose. Only Robinson, the original contractor, could file the notice of lien, and then only after he had completed the work and completed his contract, and within the time provided by law. But he abandoned his contract, and therefore himself could file no lien. The acceptance by the defendants of the draft drawn by Zachary Zachary is as follows:
$84.98. MOUNT OLIVE, N.C. 16 November, 1898.
Mr. D. Perry and wife, K. D. Perry, will please pay to Zachary Zachary the sum of $84.98, and charge the same to my account as a payment on the contract price for building a dwelling-house about two miles north of the town of Mount Olive, N.C.
Probate of the paper and acceptance was had as to both, and the private examination of the feme defendant was taken. The paper (draft) contains no express charge upon the land mentioned in it, nor can it be considered as a lien by way of mortgage, and is therefore not effectual to bind the real estate of the feme defendant. Farthing v. Shields, 106 N.C. 289; B. and L. Assn. v. Black, 119 N.C. 323.
Affirmed.