§ 16. Estates by Entireties.

31. Lamont v. LeFevre, 96 Mich. 175 (178), 55 N. W. 687. It has been held that where the lien attached before the homestead it might be enforced regardless of the homestead. Tuttle v. Howe, 14 Minn. 145, (reprint 113).

32. Lamont v. LeFevre, 96 Mich. 175 (178), 55 N. W. 687; Deville v. Widoe, 64 Mich. 593 (594-595), 32 N. W. 894. In the latter case the court held that a city lot, purchased with the intention of making it a homestead for the purchaser and his family, would be exempt from levy and sale on execution from the time of purchase, even though unimproved and without a dwelling thereon, if the purchaser enclosed it and used and occupied it with the constant purpose of making it his home, and used the proceeds thereof and such means as he could procure, within a reasonable time, to erect a house thereon for his family, provided it did not exceed quantity and value the constitutional limit, and that what would be regarded as a reasonable time must necessarily depend upon the circumstances of each particular case. A homestead cannot be claimed in premises upon which a house is under construction for claimant when, at the time the contract was made and the work

in

33

commenced, he owned and was occupying a house in another part of the same city. McMonegal v. Wilson, 103 Mich. 264 (267-268), 61 N. W. 495; Delray Lumber Co. v. Keohane, 132 Mich. 17 (19), 92 N. W. 489. In McMonegal v. Wilson, supra, the court said: "Whatever might be said if, at the time this lot was purchased and the labor commenced, the defendant had been without a homestead elsewhere, and the testimony showed that the lot in question was purchased for a homestead, no such liberality of construction of the homestead law is permissible as will entitle the party to two homesteads at the same time, -the one actual and the other potential."

33. §2 of Act 179 of 1891, amended by Act 143 of 1897, C. L. 1915 (14797), How. 2nd Ed. §13767, C. L. 1897, (10711). Estates by entirety or community property as subject to mechanics' lien for work under contract with one spouse only. Note 11 Am. & Eng. Ann. Cas. 87-88; Boisot on Mechanics' Liens, §§128-129. It is only when land is owned by husband and wife, by entireties, or when the land is held and occupied as a homestead, that a contract for a building thereon is required to be in writing, and signed

by both the husband and wife, in order that a lien may attach to either land or building. In every other case the contract for the improvement may be written or unwritten, express or implied. Sheldon, Kamm & Co. v. Bremer, 166 Mich. 578 (579, 583), 132 N. W. 117; Bauer v. Long, 147 Mich. 351, 110 N. W. 1059; McMillin v. Schneider, 147 Mich. 258 (263264), 109 N. W. 661; Frolich v. Blackstock, 155 Mich. 604, 119 N. W. 906; Restrick Lumber Co. v. Wyrembolski, 164 Mich. 71, 128 N. W. 1083; Burman v. Ewald, 192 Mich. 293, 23 D. L. N. 449, 158 N. W. 853. In Burman v. Ewald, 192 Mich. 293, 23 D. L. N. 449, 158 N. W. 853, the contract was signed by the wife alone, for herself and husband, for a building upon land owned by them jointly, and the husband had told the contractor that his wife was looking after the business and they must deal with her. He later joined with her in a mortgage to secure funds with which to pay for the structure. It was held that, as a lien must rest in strict right and not upon mere equities, the contractor was not entitled to a lien in the absence of the husband's signature. In Bauer v. Long, 147 Mich. 351, 110 N. W. 1059, the husband contracted for a structure upon land owned by himself and wife jointly as tenants in entirety. The court said: "The bill shows that complainant knew how the title was held; that the building was to be so constructed that it became a part of the realty, and could not be removed after its erection, without injury to the freehold, and that he has so constructed it. His bill is framed upon that theory, for it does not pray for a lien upon the building separate and apart from the land on which it is situated. This court has re

* *

The

peatedly held that one tenant by the entirety has no interest separable from that of the other. He has nothing to convey or mortgage or to which he can attach a lien. In view of this condition of the law, and to protect the rights of each, the legislature enacted that this lien might attach if the lienor secured the written contract of the husband and wife. To hold that either might contract for a lien without the assent of the other would be clear judicial legislation. complainant seems to concede that he has no lien upon the land, but claims the right to a lien upon the dwelling house, and to sell and remove it under his lien proceeding. This case does not fall within (14798) Michigan Comp. Laws, providing for a lien upon the building if the building is upon lands 'to which the person contracting for such erection has no legal title,' or within the decision of Holliday v. Mathewson (146 Mich. 336.)" It was conceded that the question was before the court for the first time, and it was held that no lien attached to either land or building, in the absence of the wife's signature. In McMillan v. Schneider, 147 Mich. 258, 109 N. W. 661, the husband alone contracted for improvements upon land owned by himself and wife jointly. It was held no lien could attach. In Frolich v. Blackstock, 155 Mich. 604, 119 N. W. 906, the husband alone signed the contract for improvements upon land held by himself and wife under an executory land contract running to them jointly. They later took a warranty deed of the premises. Lien was denied upon either land or buildings in the absence of the wife's signature. In Restrick Lumber Co. v. Wyrembolski, 164 Mich. 71, 128 N. W. 1083, the husband

§ 17.

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alone contracted for a building upon land of which he and his wife had given a deed to secure a loan and had taken a land contract; the deed and land contract to them were held to constitute a mortgage upon property owned by them jointly, and a lien was refused in the absence of the wife's signature. In Sheldon, Kamm & Co. v. Bremer, 166 Mich. 578, 132 N. W. 117, the husband alone contracted for a building upon land which, at the time the complainant began to furnish the material for such building, was held jointly by the husband and wife, by entireties. The husband made the contract at a time when he had no title to the land. The premises also constituted the homestead of the parties. This proved the determining factor; lien was refused in the absence of the wife's signature. The case makes the important though perhaps unsound (§83 herein) distinction that it is the condition of the title at the time the particular furnishing is begun that proves the determining factor, and not the condition of the title at the time the original contractor began to furnish material or labor. Section 2 of Act 179 of 1891 originally provided that, where the title to the land was held jointly by husband and wife, the lien should attach to both the land and any improvements made thereon, if such improvements were made in pursuance of a con

tract either with both of them or "with one of them by and with the knowledge and consent of the other." In spite of this express statutory provision, in a case where the husband alone signed the contract by and with the wife's knowledge and consent, the land was nevertheless held immune from lien as a homestead under the constitution of 1850 (Art. XVI, Sec. 2) in the absence of the wife's signature. Under the peculiar language of another section of the act, however, (Sec. 9, Subd. 4) the lien was held to have attached to the building. Jossman v. Rice, 121 Mich. 270, (274-278), 80 N. W. 25. That part of Section 9 involved in the Jossman Case was amended and practically repealed by Act 143 of 1897, and by the same Act, section 2 was amended to its present form so as to provide that both husband and wife must sign the contract in order that a lien may attach to either lands or buildings held jointly by them or held and occupied by them as a homestead. Hence under the present law, where the wife fails to sign the contract for a building on their homestead or joint property, this failure will in general be held fatal to any claim of lien on either land or buildings thereSee cases cited above.

on.

34. Bauer v. Long, 147 Mich. 351 (353), 110 N. W. 1059.