construction or improvement, or if the furnishing of labor and material was going on at the time of sale and was permitted to continue, an implied contract would arise which would subject his entire interest in the property to lien.

Even in case the real estate were intermediate the entering into the contract and the first furnishing thereunder transferred to a bona fide purchaser who was without knowledge either of the contract or of the fact that the building was to be erected until after completion, the structure if new, would be subject to the right of lien.

§ II. Lessees and Vendees.

The interest of a lessee or tenant or vendee, whatever may be its character, in the real estate and existing structure and in the structure created or fixtures attached to the building, under his contract for construction or improvement, is subject to lien.13 The right, however, to lien upon the real estate and existing structure at least cannot extend beyond the actual interest of the vendee or tenant contracting11 except under special circumstances.

13. Albert Gall Co. v. Dowagiac Gas Co., 160 Mich. 255, 125 N. W. 283; 27 Cyc. 30-31, 56-59.

14. Merrill v. Brant, 175 Mich. 182 (184-185), 141 N. W. 550; Peninsular Electric Co. v. Norris, 100 Mich. 496 (501-505), 59 N. W. 151. The lien under the lessee's contract attaches subject to all of the conditions of the lease. Gaskill v. Trainer, 3 Cal. 335; Williams v. Vanderbilt, 145 IH. 238, 34 N. E. 476, 21 L. R. A. 489; 27 Cyc. 56-57. Surrender of the lease prior to expiration would not impair the right of the lienor to the security of the full leasehold although forfeiture in accordance with the terms of the lease would do so. 27 Cyc. 291. Where a vendee under a land contract surrenders or forfeits his rights thereunder, the persons holding

liens upon his interest may be subrogated to the rights of such vendee as his rights existed immediately before such surrender or forfeiture, by performing the covenants in his contract within thirty days thereafter. Sec. 3 of the Act; C. L. 1915 (14798); How. 2nd Ed. §13768, C. L. 1897 (10712). On the question of the power of a lessee or vendee to subject the owner's interest to mechanics' liens, see Note to 23 L. R. A. (N. S.) 601; Wilkinson on Mechanics' Liens pp. 20-22. Where the lease or contract of sale provides for improvements, the lessor or vendor is generally held to thereby subject his interest to lien for those improvements under the contract of the lessee or vendee. 27 Cyc. 58-61.

§ 12. Liens Where Title Not in Contractee.

Any person furnishing services and materials for the erection of a new building or structure upon land to which the person contracting for such erection has no legal title, at the time of commencement of the structure or improvement, or under certain circumstances at the time of the particular furnishing is entitled to a lien therefor upon such building or structure; and the forfeiture or surrender of any title or claim of title held by such contracting person to such land does not defeat the lien upon such building or structure of such person furnishing services or materials.1 This statutory rule does not apply and subject to right of lien a building, erected without a written contract duly signed, upon land of an owner and wife as tenants in entirety;16 though it does give a lien upon a new house built on land constituting a homestead, where the claimants of such homestead have not the legal title but only the promise of it as a gift, where the wife did not sign the contract, but took part in the negotiations and discussions, and the lien in such case

15. §3 of Act 179 of 1891, C. L. 1915 (14798); How. 2nd Ed. $13768, C. L. 1897 (10712). It is the state of the title at the time the material is begun to be furnished or labor performed which determines whether a laborer or materialman may secure a lien on the building or structure. Sheldon, Kamm & Co. v. Bremer, 166 Mich. 578 (582), 132 N. W. 117. In Kerr-Murray Manufacturing Co. v. Kalamazoo Heat, Light & Power Co., 124 Mich. 111 (114), 82 N. W. 801, following Kay v. Towsley, 113 Mich. 281, 71 N. W. 490, it was held that liens attach as of the date of the commencement of the building, erection, or other improvement, regardless of the time when, or the person by whom, the particular work was done or the materials furnished for which a lien is claimed. See §10, Effect of Disposal of In

terest, note 12. As to mechanics' liens upon buildings distinct from lands, see Notes 2, Am. & Eng. Ann. Cas. 689-691; 62 L. R. A. (N. S.) 369-382; Boisot on Mechanics' Liens, §§180-183, 178.

16. Bauer v. Long, 147 Mich. 351, 110 N. W. 1059; Sheldon, Kamm & Co. v. Bremer, 166 Mich. 578, 132 N. W. 117; Restrick Lumber Co. v. Wyrembolski, 164 Mich. 71, 128 N. W. 1083. In this case it was held that, where tenants by entireties executed a deed and took back a land contract, the transaction amounting to a mortgage, they did not divest themselves of title so as to permit the acquiring of lien against the building in a case where the wife did not sign, under the theory of the erection of a new structure on land to which the person contracting had no legal title.

may be enforced by a sale and removal of the new structure.17 Such is not the case, however, where the land is held by a husband and wife under an executory contract to purchase as tenants by entireties, later converted into a warranty deed, and the contract is signed only by the husband." Nor is such the case where a husband contracts in his own behalf for a structure on his wife's land and the claim of lien is served upon the wife and not upon him, and he is not made a party to proceedings against her to enforce the lien against the land and building.19 The statute does not allow a lien in cases where title to the land is in a third party, unless the building or structure is a new one. Where by contract with the tenant, labor and materials were furnished, the contractor is entitled to protection by lien.21 Where the husband has no title to the land but contracts for a structure upon lands of the wife, the evidence may sustain an agency and subject the land to a lien.2

17. Holliday v. Mathewson, 146 Mich. 336, 109 N. W. 669. See §§13-14 post.

18. Frohlich v. Blackstock, 155 Mich. 604, 119 N. W. 906. Where a man contracted for the remodeling of a building upon land, the title to which was in his wife's mother, there being a family understanding that the lot should belong to his wife eventually and it having been for some time occupied by himself and wife, and the holder of the legal title was not a party to the contract, and there was no evidence from which the inference could be drawn that the son-in-law was acting as her agent in making the contract, it was held there was no basis for a valid lien on the real property for the value of the materials entering into the remodeling of the structure. John Wallace Sons Co. v. Wilkinson, 181 Mich. 694 (699), 148 N. W. 166.

19. Hall v. Erkfitz, 125 Mich. 332, 84 N. W. 310.

20. Fuller v. Detroit Loan &

22

20

Bldg. Ass'n, 119 Mich. 71 (73-4), 77 N. W. 642.

21. Albert Gall Co. v. Dowagiac Gas Co., 160 Mich. 255, 125 N. W. 283. But where, under the law of 1833, labor and materials were furnished for a building under a contract with one holding under a land contract with which he later failed to comply thus losing any interest he had therein, it was held that no lien would lie against the owner's land. Scales v. Griffin, 2 Doug. 54 (58). Under the law of 1846 amended, one having at the time no title to certain land cannot, by merely contracting for material for a building to be erected upon such land, subject it to a mechanics' lien. Wagar v. Briscoe, 38 Mich. 587 (592-593).

as

22. Willard v. Magoon, 30 Mich. 279-280; Frohlich v. Carroll, 127 Mich. 561 (564-565), 86 N. W. 1034. In this case the court said: "Margaret Carroll owned the land; she knew the buildings were to be erected thereon; she wanted

In general, no lien can attach to a homestead or lands used and occupied as such, in the absence of a contract in writing signed by both the husband and wife.23 The con

tract, even though in writing, must show an intent to include the homestead interest in order to subject it to lien." There is nothing in the statute requiring the owner to give notice to the contractor, subcontractor or material man that such owner claims the premises as a homestead. It is the fact of its being or not being a homestead that determines the right to or freedom from lien in the absence of a written contract properly signed.2

§ 14.

emption.

25

Attaching of Lien to Excess Over Ex

The general rule above stated is not, however, absolute. ̧ Where improvements have been made upon a homestead, in pursuance of a contract signed by either the husband or wife alone, there appears to be a distinction in the cases to the effect that, where the one who signs the contract owns the land, a lien will attach for the excess value over $1,500;26 but where the one signing the contract does not hold the title to the land, no lien will attach, although the homestead

stead and owned by a married woman and her mother, the contract being signed by the husband only and he not acting as the agent of either of them, the wife's failure, as well as that of her mother, to sign the contract was held fatal to any claim of lien. John Wallace Sons Co. v. Wilkinson, 181 Mich. 693 (696-698), 148 N. W. 166. If it were a homestead (but which question the court did not deem it necessary to pass upon) the omission of the wife's signature was fatal; if it were owned by the mother alone, the fact that she was not a party to the contract was fatal; and the fact that it was an old building prevented a lien upon the structure under section 3 of the act.

24. Burtch V. McGibbon, 98 Mich. 139, 56 N. W. 1110; Hammond v. Wells, 45 Mich. 11, (13), 7 N. W. 218.

25. Mills v. Hobbs, 76 Mich. 122 (126), 42 N. W. 1084; This was a case under the law of 1887, holding that, where a claim of homestead was relied upon as a defense, the question was as to the homestead character and value of the premises at the time the lien was claimed to have attached.

132

26. Scott v. Keeth, 152 Mich. 547 (551-552), 116 Ñ. W. 183; McAllister V. Des Rochers, Mich. 381 (383-385), 93 N. W. 887; Lamont v. LeFevre, 96 Mich. 175 (176, 178), 55 N. W. 687; Mills v. Hobbs, 76 Mich. 122 (126-127), 42 N. W. 1084. Το reach the excess value of a homestead over $1,500 in a case where the excess is properly subject to lien, the premises may be sold, Lamont v. LeFevre, 96 Mich. 175 (178), 55 N. W. 687; McAllister

V.

Des Rochers, 132 Mich. 381 (384), 93 N. W. 887.