Wilson v. Schuck ( 1880 )

Per Curiam.

This was a proceeding for mechanic’s lien, brought by appellee against appellants, who are husband and wife. The petition alleges that, at the time of the making of the contract relied upon as the foundation for the lien, Edwin A. Wilson was in possession of, and exercising acts of ownership over the lots in question; that the contract for the materials was made with the said Edwin A. Wilson; that the petitioner is informed, and believes that Cynthia H. Wilson has, or claims to have, some estate or interest in said premises, and that she was personally knowing to the work and labor bestowed, and the lumber used in making the improvements thereon. These allegations do not bring the case within the terms of the statute which requires the contract to be made with the owner. The proof is that the wife was the owner of the land, and had the evidence of her title thereto upon record. If it was intended by the petition to bind her land by way o f estoppel, the facts to be relied upon as an estoppel should have been alleged in the petition, or if it was intended to bind her by the acts of her husband as her agent, the fact of such agency should have been alleged.

The decree is reversed and the cause remanded, with leave to amend the petition.

Reversed and remanded.