Dearie & Wife v. Martin

Mr. Justice Williams

delivered the opinion of the court, October 14th 1875.

If the claim, on which the scire facias issued, was radically defective, it was no lien on the wife’s property; and the defect was not cured by the replication to her plea of coverture. The replication cannot be treated as an amendment of the claim, and if it could, it was too late to amend after the statutory period allowed for filing the claim. If the claim was fatally defective, it was as powerless to continue the lien for which the law provides, as if it had never been filed. It is clear that the wife’s property is not subject to a lien for work done and materials furnished in its improvement or repair, upon a contract with the husband, unless it is made with her authority. The husband cannot, by any act of his, encumber the wife’s property without her consent, even for the purpose of making necessary repairs. And if so, is it not essential, in order to bind the wife’s property, that the facts necessary to the validity of the lien should appear on the face of the claim ? Should it not show the coverture of the wife, and that the work was done and the materials furnished with her authority and consent ? How otherwise can it be known with *58 reasonable certainty that the claim was intended to be a lien on the property of the wife and to bind her separate estate ? It seems to us but reasonable that the claim should set forth substantially all the facts necessary to the validity of the lien, and if it does not, that it should be regarded as inoperative and void. Is, then, the claim in this case sufficient,- if the wife’s property was subject to a lien for the work done and the materials furnished by the claimant ? It does not show the wife’s coverture in express terms or by necessary implication. It is true that James Dearie and Margaret Dearie are named as owners or reputed owners, and James Dearie as contractor. But it is not alleged that Margaret is the wife of James, and it is not necessarily implied from the fact that she has' the same surname. She may have been his mother, sister, or cousin, or she may have sustained no other relation to him than that of co-owner of the property sought to be charged. Nor is there anything to show that the debt, for which the claim was filed, was contracted for work done and materials furnished upon the authority and with the consent of the wife. It is not so alleged, and there is nothing in the claim from which it can properly be inferred. The fact that James Dearie is named as contractor cannot be regarded as a sufficient averment that the contract for the work and materials, for which the claim was filed, was made with the authority and consent of the wife. Being named as one of the owners, he was properly designated as. contractor, if the work was done and the materials furnished upon his orders, as alleged in the claim: Sullivan v. Johns, 5 Whart. 356 . But if Margaret Dearie, the other alleged owner, was his wife, as shown by the pleadings, it does not follow, because he is named as contractor, that she authorized or consented to the contract on which the plaintiff’s claim is founded. If then the debt, incurred for the improvement of the wife’s property, was contracted during her coverture, as alleged in the plea, and impliedly confessed in the replication, the claim is incurably defective; and if so, as there can be no recovery upon it, it is immaterial whether the work was done and the materials furnished with her consent or not. If the claim was not a lien on the wife’s property by reason of her coverture, the replication was no answer to the plea,-and the court below erred in giving judgment for the plaintiff on the demurrer. Under the pleadings the defendants were clearly entitled to judgment. We have nothing to do with the supposed hardship of the case on the one side or the other. The substantial and only question presented by the record is, whether the claim, as filed, is a lien on the property of the wife. We think it is not, and that to hold otherwise would be productive of endless doubt and mischief.

Judgment reversed and judgment for the defendants below on the demurrer.