Zachary v. Perry, 130 N.C. 289 (1902)

May 13, 1902 · Supreme Court of North Carolina

130 N.C. 289

ZACHARY v. PERRY.

(Filed May 13, 1902.)

1. MECHANIC’S LIEN — Notice—Contractor.

Only tlie original contractor can file the notice of a mechanic’s lien.

2. HUSBAND AND WIPE — 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.

Clark, J., dissenting.

ActioN by Zachary & Zachary against D. R. Perry and Kate I). Perry, his wife, "heard by Judge II. B. Starbuclc, at April Term, 1901, of the Superior Court of Wayne County.

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 the 10th day of 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 the 16th day of November, 1898, the said J. W. Robinson was indebted to tbe plaintiffs in tbe sum of $84.98, and on that date be executed and delivered to tbe plaintiffs paper-writing hereto' annexed and made part of tbis statement, marked ‘B,’ wbicb paper-writing was registered in Wayne County.

“5. Tbat on said paper-writing is written, ‘Accepted and payable on tbe lltb day of December, 1898,’ wbicb indorsement was signed by tbe defendants, D. R. Perry and Katie D. Perry.

“6. Tbat on tbe 8th day of March, 1899, tbe plaintiffs filed in tbe office of tbe Clerk of tbe Superior Court of Wayne County, for tbe purpose of establishing a lien, paper-writing hereto annexed and made a part of tbis statement, marked ‘0,’ wbicb paper-writing was filed within twelve months from the time tbe said Robinson completed tbe work tbat be did on said bouse.

“1. Tbat the materials furnished by tbe plaintiff were used by the said Robinson in tbe construction of tbe building referred to in paper-writing marked ‘A,’ upon tbe land of tbe defendant Katie D. Perry.

“8. Tbat no part of said sum of $84.98 bas 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; tbat after said paper marked ‘A’ bad been delivered to plaintiffs, said' Robinson abandoned hisi contract with tbe defendants, and on account of bis breach of contract there -would be nothing due by tbe defendants to Robinson. Tbis admission is made by tbe defendants without admitting or intending to admit any liability, personal or otherwise, upon tbe part of tbe feme defendant.”

There was a judgment for defendants, and plaintiffs appealed.

Douglass & Simms, for tibe plaintiffs.

Allen & Dortch, for tbe defendants.

Montgomery, J.,

after stating the case. Tbe attempt to file notice of a lien by Zachary & Zachary against the property c-f 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. Mouht Olive, N. 0., Nov. 16, 1898.

"Mr. D. Perry and wife K. D. Perry will please pay to Zachary & Zachary the sum of eighty-four and ninety-eight one-hundredth dollars, 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 ; Loan Association v. Black, 119 N. C., 323.

Affirmed.

Clark, J.,

dissenting.

The feme defendant contracted for the erection of a building on her land, in writing, with written assent of her husband and privy examination duly taken. Subsequently, she accepted an order drawn by the contractor upon her, the acceptance being in writing, with written assent of her husband and privy examination. If this constitutes a valid, binding obligation upon the feme covert for the betterments on her land, then a mechanic’s lien can be. filed to secure it. If, with all these formalities, a mar-tied woman can not get work done or obtain credit, no> one dare trust her or do' work for her, and she is a pariah as to all business transactions.

It is true we are referred to Flaum v. Wallace, 103 N. C., 296, for the doctrine that there must be a “charge in equity” (whatever that may be) on the feme covert’s land, but with the utmost and most diligent research, both bench and bar have been unable to discover any statute or previous decision which requires such “charge,” and this Court has distinctly repudiated that doctrine. Brinkley v. Ballance, 126 N. C., at page 396.

The statute enacted by the proper law-making authority, Code, Sec. 1826, provides that a married woman can make a contract affecting? her real estate “with the written assent of her husband.” The plaintiff certainly ought to have the benefit of the law of the land. Several recent statutes show that such is still the mind of the law-making power, such as the statute allowing the statutes of limitations to run against a married woman, allowing her to vote her stock in corporations, and the recent act providing that a married woman is liable for improvements put upon her property, even when she makes no contract, but merely stands by and sees the work done without exception. Independent of the statute, the Constitution gives a married woman the same control over her property “as if she remains single,” and responsibility always goes with the power to- control.