Conway v. Crook

Robinson, J., delivered the opinion of the Court. We agree with the Court below that the mechanics’ lien claimed in this case cannot be sustained. The facts are these: — The appellees, husband and wife, owned adjoining tracts of land, and the husband intending to build a house for his son, selected a site on the tract belonging to the wife, because it was a more commanding and in every way the most desirable location. He then made a contract with the Messrs.

Potter for the erection of the house, and when it was finished, he paid them in full the contract price. The contractors however it seems bought certain building materials of the appellants, but did not pay for the same ; and the appellants now claim a lien against the house. If the house was built by the husband as the agent of his wife, then notice to him of an intention to claim a lien within sixty days after the materials were furnished, is sufficient, because being the authorized agent of the wife, notice to him is equivalent to notice to her. Jarden and Wife vs. Humphrey, 36 Md., 361 ; sec. 11, Art. 61, Code.

On the other hand, if it was built on the land of the wife by the husband or by some person employed by him, acting in ²⁹² his character as husband, and undertaking to make the improvement in the exercise of his own authority as such, then the notice must be given to the wife. Sec. 10, Art. 61, of the Code. In this case the notice was given to the husband under sec. 10, and it is admitted that no notice was ever given to the wife. Now a great deal was said as to whether the notice was in fact given within the time required by the statute, but this we pass by because it is not material in the view we take of the case.

The real question is, whether the house was built by the husband as agent for Ms wife. Now what are the facts relied on to prove the agency ? It is said in the first place, that the wife knew the house was being built, and never made any objection to it, on the ground that it was being built upon her land; —that on several occasions she made suggestions in regard to