McMillan v. Schneider , 147 Mich. 258 ( 1907 )

Ostrander, J.

(after stating the facts). The contract for the improvement and the performance of labor thereunder do not support the asserted lien. The statute before amendment read:

“And in case the title * * * is held by husband and wife jointly, the lien given by this act shall attach to such lands and improvements, if the improvements be made in pursuance of a contract with both of them, or in pursuance of a contract with one of them by and with the knowledge and consent of the other.” Section 2, Act No. 179, Pub. Acts 1891.

The decision in Jossman v. Rice, 121 Mich. 270, in which this statute was considered, goes upon the ground that the land, the title to which was in the husband and wife jointly, was also a homestead, and it was held that the lien for improvements could not affect the land or the title thereto, the contract for the improvement not having been -signed by the wife. In the present statute home-' steads and lands held jointly by husband and wife are classed together, the clear meaning being that no lien shall attach to lands so held unless both husband and wife join in a written contract for the proposed improvement. It is not necessary to determine whether the wife may, in any case, by failure to interpose objection, or by consent to the entering of a decree establishing a lien, perfect the lien and the title resulting from a sale of the land in its enforcement. It is sufficient to say that she cannot, by such action, disestablish or postpone the right of one asserting a prior right to the land or to the proceeds of the contract. Wiltsie v. Harvey, 114 Mich. 131; Dittmer v. Bath; 117 Mich. 571.

We thus dispose, adversely to him, of all of appellant’s contentions excepting the one that, at the time the garnishment suit was begun, nothing was due from defendant to Lappin because the work had not been at that time accepted by the architect. Upon this point, counsel for appellant invokes the rule approved in Hanley v. Walker, 79 Mich. 607 (8 L. R. A. 207). The application of the rule here does not necessarily defeat the recovery. The question is whether there was anything due to Lap-pin from defendant at the time the writ of garnishment was served. Upon this point, defendant had the right to set up in his disclosure and defense any and every fact which would be available in a suit brought against him by Lappin. In his first disclosure, he admitted there was due from him to Lappin the sum of $326. In the second (first written) disclosure, he denies that any sum is due, because the work is not completed and accepted by the architect, and because he had received notice from Lap-pin that he owed his men, who might file and enforce liens. In this disclosure, it is asserted that the last labor was performed before the suit in garnishment was begun. It was notthen, or at any time, claimed that any part of the contract price for the work had been paid. Assuming that Lappin had performed his contract, and that the certificate of the architect had been waived or was improperly withheld, it is clear that there was due from defendant to Lappin, at the time the writ was served, the sum of $326. The plaintiff in garnishment had the right to prove that the facts assumed were true. 1 Comp. Laws, §§ 995, 999, as amended by Act No. 172, Pub. Acts 1901. See Webber v. Bolte, 51 Mich. 113. It must be presumed that he did this to the satisfaction of the justice of the peace. At the trial of the appeal in the circuit court, the same issue was presented. There was testimony to the effect that the attorney for plaintiff called upon the architect and. was told by him that he would never issue a certificate until Lappin paid the demand of plaintiff. There was no evidence tending to prove that the work was not completed and not accepted, excepting the said disclosures. It is not now contended that defendant did not, in fact, owe Lappin, at the time the writ was served, the full contract price. There was, therefore, evidence controverting the facts set out in the second disclosure and controverting the legal conclusions which it was intended and claimed should be drawn from the facts. In my judgment, this evidence is conclusive, and supports the ruling and determination of the trial judge.

The judgment is affirmed.

Grant, Blair, Montgomery, and Hooker, JJ., concurred.