266 Electors defined.. 173 399 § 2. Ballots 173 1870, chap. 93. Power of towns to purchase 6. Laws for purifying elections. 173 water rights.. 400 chap. 332. Street lamps. 399 Statutes. 1873, chap. 255. Water rights. 400 1881, chap. 208. 1882, chap. 154. chap. 255. 212 398 1883, chap. 221. 1884, chap. 42. 1885, chap. 60. chap. 123. 399 398 chap. 314. 399 chap. 378. chap. 435. Power to take water from the Merrimac River.. 122 1886, chap. 76. Towns, power to vote money. 1887, chap. 252,8 13. Extermination of glanders chap. 345. Towns, power to vote money. chap. 382. Power of commissioners over gas companies. chap. 373. 1888, chap. 350. 1889, chap. 21. Towns, power to vote money. Gas and electric light commis Gas companies. 399 398 sioners 399 Towns, power to vote money. Towns, power to vote money. Cities not included in words "persons and corporations" Foreign corporations 398 398 Construction of reservoirs. Towns, power to vote money. Towns, power to vote money. Electric lighting.... Towns, power to vote money. Towns, power to vote money. Towns, power to vote money. Gas commissioners. liquors Dog tax. Municipal legislation. Taxation, exemption of public property Detroit police court. Liquor bond.. Collection of taxes. Regulation of sale of intoxicating liquors.. Dog tax. Taxes, payment over to county treasurer. Howell's Statutes. Public Acts. p. 389. 1887, No. 313. 1889, No. 195. No. 207. No. 214. No. 214. 75 70 Chap. 81. Municipal legislation... Municipal Incorporation Act. Railroads, equal facilities. 74 75 820 Towns, power to vote money. 398 Towns, power to vote money. Foreign corporations... 7109. Appeals from justices. 264 398 7317. Summons. 626 760 7543. Discrediting witness. 379 Special Statutes. Minnesota. 1838, chap. 17. Rural cemetery. Revised Statutes. Chap. 7, § 5. cl. 5. Taxation, exemption..... 47. Intoxicating liquors. 58,8 62. Assignment of insurance policies General Statutes. 366 443 262 120 118, $$ 42, 44. Conveyance to assignee.... 765 1895, chap. 78. Taxation of building associa tions.. Special Laws. 753 1868, chap. 27, subd. 6, § 1. Charter of Mankato 271 General Statutes, 1878. Chap. 26, § 10. Removal of nuisances. Public Statutes. 34, $109. Loan associations. 66. Attachments Chap. 5, § 153. Charge upon the facts. 669 11, § 5. 27, §§ 10-51. 27, 88 27-31. Exemption from taxation..366, 575 400 $37. Street lamps.. 399 $ 44. Power of towns to construct telegraph 399 28, § 128. Power of towns. 401 Art. 1, § 18. 29. Water rights 400 75, 8 2. Action to determine adverse claim Missouri. Constitution, 1865. Right of accused to demand nature of accusation 753 752 506 501 34, 81. Towns, power to vote money... 398 4, § 25. Re-enactment of laws. 720 719 35, § 3-5. Fire, destruction of houses to prevent 117 Constitution, 1875. § 28. Towns, power to vote money. 52. Taxes for street lamps. 44, §§ 8, 9. Towns, power to vote money 50, 87. Towns, power to vote money.. 61. Gas commissioners 78, § 1. Statute of Frauds. 763 80, 8$ 18, 64, 65, 67, 69. Power of board of health... Art. 2, § 20. Compensation for property taken Ascertainment of compensation.. 373 Statutes. 373 719 121 $62. 70. Towns, power to vote money 398 100, 8 4. Intoxicating liquors.. 109, §§ 2, 3. Telegraph companies.. $$ 16, 18. Telegraph lines. 444 499 399 119, § 139. Fire insurance policies. 139, § 36. Power of guardian to elect... 140, § 11. Mortgage of ward's estate. 151, § 2. Bill in equity to reach debtor's property 1873, March 22. 1861, March 27. 1867, March 13. 1875, Feb. 4271887, April 12. 17. St. Louis police 758 758 766 Prosecution of misdemeanors 721 1869, p. 197, § 19. Verification of information.. 721 1873, p. 79. Normal school. 719 495 719 719 Session Acts. 495 157, § 44. Insolvent Law; conveyance to assignee 1875, p. 204. Burial grounds 600 765 p. 244, art. 7. Kansas City Charter. 371 § 46. Conveyance to assignee. 765 1877, p. 354. Prosecution of misdemeanors... 721 203, 876. Penalty for extinguishing gas lamp. 1883, p. 104. Service of complaint.. 603 899 Revised Statutes, 1879, Chap. 150, art. 3. Normal schools.. $1561. Indictment for obtaining money un der false pretenses §§ 1762-1766. Verification of information.. 2865. Service of complaint 3775. Nonprejudicial instructions. 4017. Physician as witness. 175 72 6304 Pnysicians.. 495 41 721 40 603 39 39 38 pensation 700 8 188. 703 §§ 494, 497. 1889, chap. 60. Indian schools Code. Abatement of actions. 274. Setting aside judgment. Power of receiver $590. Witnesses. 542 542 572 664 938. Effect of death of party to action 945. Power of supreme court to issue reme 542 dial writs 542 1281. Miscegenation 664 181 1799. Agricultural lien 493. LAWYERS' REPORTS, ANNOTATED. IOWA SUPREME COURT. Delia ESTERBROOK, Appt., 0. D. L. RILEY et al. (....Iowa....) 1. An assignment of error as to the admission of evidence which is not argued before the court will not be considered in the opinion. 2. Under statutes giving one furnishing material for a building under a contract with the owner of the land upon which it is erected a lien on the building and land for the value of the material, and providing that every person for whose immediate use or benefit a building is made shall be included by the term "owner," mere proof that a woman owns the land on which a building has been placed by direction of her husband will not defeat a claim for materialmen's liens thereon, since such ownership is not inconsistent with his right to erect a house thereon for his immediate use and benefit. (October 28, 1890.) NOTE.-Mechanics' lien on land of married woman. Although Ala. Code 1886, § 2346, limits a wife's power to make contracts to those in writing, with the assent of the husband expressed in writing, yet under the Mechanics' Lien Law of that State an oral contract with a married woman, without her husband's assent, is sufficient to create a lien for work done and materials furnished. Cutcliff v. McAnally, 88 Ala. 507. Where a contract is merely a sale of materials for a particular building or improvement on land, or to be used in the construction of certain works, there being nothing negativing the reservation of a lien or the idea that the materialmen will look to the property for payment, the law will declare and enforce the claim against the property itself. Eufaula Water Co. v. Addyston Pipe & S. Co. (Ala.) May 26, 1890. Under the Maryland Code, to entitle a materialman to a lien on a house built on the land of the wife by the husband, or by some person employed by him acting in his character as husband, and undertaking to make the improvement in the exercise of his own authority as such, notice must be given to the wife. Conway v. Crook, 5 Cent. Rep. 771, 66 Md. 290. Lien created by consent of owner. If the owner of land permits a husband or wife, child, parent or stranger to erect a building on his or her land, with his or her knowledge and consent, the real estate is charged with a lien for the unpaid work or materials, although the owner bad an understanding with the person making the improvement that the latter was to pay the entire costs thereof. Heath v. Solles, 73 Wis. 217. 10 L. R. A. 3 APPEAL by plaintiff from a judgment of the District Court for Osceola County in favor of defendants in an action brought to set aside a judgment and the sale thereunder of certain real estate for the enforcement of a mechanics' lien. Affirmed. Statement by Granger, J.: The plaintiff is the wife of John Esterbrook. John Esterbrook purchased of the defendant lumber, and with it erected a house on premises belonging to his wife. The defendant thereafter filed its claim for a mechanics' lien against John Esterbrook, and obtained a judg ment, and the establishment of its lien against the building and the land on which it was situated. The plaintiff in this suit was not a party to that. The premises were afterwards sold on execution issued on the judgment in which the lien was established, and purchased by the defendant firm. This proceeding is to set aside the judgment and sale on the ground that the plaintiff, Delia Esterbrook, was the owner of the land on which the building was Where he gave directions as to the method of construction of the buildings for the lessee, which buildings by the terms of the lease were immediately to attach to the freehold and become part of the premises, a mechanics' lien arises against the owner. Ross v. Simon, 28 N. Y. S. R. 147. His mere consent to repairs and alterations made by his lessee is not sufficient to obligate him to pay for the same, or to subject his interest in the premises to the mechanics' lien. Ibid. Creation of lien by acts of husband as agent of wife. Under the Alabama Code, a lien for materials furnished for the erection of a building on a lot owned by a married woman may be acquired under a contract made with her agent. Youngblood v. McAnally, 88 Ala. 512. A mechanics' lien attaches to a wife's property for labor performed at the husband's request and with her knowledge. Wheaton v. Trimble, 5 New Eng. Rep. 381, 145 Mass. 345. An agency to bind the wife may be inferred from the fact that the husband had been intrusted with the general management of her property. Ibid. Where a contract is made for the wife holding the legal title by ber husband acting as her agent, a lien may be established as against her property. Bissell v. Lewis, 56 Iowa, 231. If the material is furnished for the use and benefit of the wife, and at the request of the husband acting as her agent, a lien may be had upon the property of the wife. Kidd v. Wilson, 23 Iowa, 464; Burdick v. Moon, 24 Iowa, 418. Where a husband erects a dwelling on land the title of which is in the name of his wife, who is aware that such building is being erected and in 33 Errors are assigned, and, as we understand, the cause is before us for trial thereon. 1. The fourth assignment, as to the admission of evidence, is not argued and hence cannot be considered. Wood v. Hallowell, 68 Iowa, 377; Wood v. Whitton, 66 Iowa, 295. The point has been often ruled. 2. It should be kept in mind that this proceeding assails the judgment by which the lien some cases directs the workmen, the agency of the husband will be presumed, and the property will be subject to a mechanics' lien. Bradford v. Peterson (Neb.) July 2, 1890. If the house was built by the husband as the authorized agent of the wife, notice to him is sufficient. Code, art. 61, §11; Conway v. Crook, 5 Cent. Rep. 771, 66 Md. 290. is established against the property in a suit against John Esterbrook. It was determined in that proceeding that John Esterbrook had such an interest that the lien was valid and enforceable. Delia Esterbrook, not being a party to that suit, institutes this, averring and assuming the burden of proving that John Esterbrook had no such interest as would justify the decree entered against the premises, and to that end she says in her petition (paragraph 2) "that John Esterbrook never had any right, title or interest in fee simple or otherwise, either in law or in equity, in and to said land." It is stipulated in this suit that, at the time the lumber was purchased, the plaintiff was the owner of the land on which the house was built, but the stipulation goes no further. There is no stipulation nor is there a word of proof that John Esterbrook had not such an interest, at least in the building, as would justify the lien, and the judgment for its enforcement. Such a lien is given to every person who shall furnish material for any building upon land by virtue of any contract with the owner, his agent, etc., for his materials upon such building and the land belonging to such owner. Section 3, chap. 100, Acts 16th Gen. Assem. Section 10, Id., provides that "every person for whose immediate use or benefit any building. . . is made shall be included in the word 'owner' thereof." Hence, if John Esterbrook had such a right or interest in the land that the house was erected for his immediate gation to take any action. Getty v. Tramel, 67 lowa, 288. A sub-contractor having no direct contract with the wife on whose property the labor and material are used, and who has not taken the steps required by statute for securing his mechanics' lien, cannot assert an equitable lien against the property of the wife. Nelson v. Cover, 47 Iowa, 250. Lands of a woman who has knowledge that her Materials must be furnished with knowledge of the husband is erecting buildings thereon, and gives wife, to bind her. The property of a married woman will be subject to a mechanics' lien for improvements made under a contract with herself and husband jointly. Greenough v. Wiggington, 2 Greene, 435. To make the interest of an owner of land subject to a lien for material or labor, under a contract to which he was not a party, his knowledge of the improvement must be shown; then he can defeat the lien only by posting the proper notice within three days after obtaining such knowledge. Allen v. Rowe (Or.) May 1, 1890. Where the title to land is in the wife, a mechanic cannot have a lien thereon for material furnished the husband, without the acquiescence of the wife, to erect a building upon such land; and it will not be presumed from the marital relation alone that the husband is authorized to act in the matter as the agent of the wife. Miller v. Hollingsworth, 33 Iowa, 224, 36 Iowa, 163; Price v. Seydel, 46 Iowa, 696; Nelson v. Cover, 47 Iowa, 250. If the wife's acquiescence is shown, an equitable lien may be established. Miller v. Hollingsworth, 36 Iowa, 163. A wife's premises cannot be charged with a lien for improvements erected thereon by her husband against her protest. If she knows or has reason to suspect that material is being bought by her husband in her name, it may be her duty to notify the person from whom it is bought that she repudiates the agency, but where the material is bought by her husband in his own name, she is under no obli her consent thereto, are subject to a lien for the materials used. North v. La Flesh, 73 Wis. 520. Under the Amendment of 1876 to the New Jersey Mechanics' Lien Law, one furnishing materials for the erection of a building on land belonging to a married woman has no lien therefor, unless she has knowledge that the building is being constructed; and it is immaterial that she does not file in the clerk's office a written notice that she does not consent to the erection of the building, as prescribed by the Lien Law. Dodge v. Romain (N. J.) July 27, 1889. In New Jersey a lien for work or materials furnished in the erection of a building extends only to legal estates and interests, and not to equitable estates. Dalrymple v. Ramsey, 45 N. J. Eq. 494. Although an oral contract with a married woman is sufficient to create a lien for materials furnished or work done, yet the contract must be with her personally or with her authorized agent; and materials furnished without her knowledge or consent, under a contract with her husband, will not bind her land. Wardsworth v. Hodge, 88 Ala. 500. It is immaterial that a lien charges that materials were used in the erection of a building on land in question, while the complaint alleges that they were used in erecting a house and barn on the same premises. North v. La Flesh, supra. The variance between the petition for a lien and the complaint, in that the petition charges the sale of materials to both husband and wife, while the complaint charges the sale to the wife alone, is im-material. Ibid. |