SUPREME COURT.

#### Alexander Copley and Edwin J. Harlow, respondents, agt. Michael O’Niel, appellant.

No *lien*upon premises under the *mechanic's Urn law of*1854, can be acquired by the builder of a house upon a lot of land owned by the minor daughter of the defendant, although the defendant in his contract for such building claimed to own the lot.

The statute gives a lien only against the *owner,*to the extent of his interest, upon a house and upon the land on which it stands for labor materials, &c.

By the Revised Statutes a *guardian*is authorized to keep up and sustain the houses grounds and other appurtenances to the lands of his ward by and with the issues and profits therof or with any other moneys of his ward in his hands.

Keeping and sustaining the houses &cM of the ward does not include building or rebuilding by the guardian; this he can do only by order of the court.

*Fifth District, General Term,*October, 1869.

*Before*Morgan, Bacon, Foster *and*Mhllin, *Justices.*

This was a pz-oceeding to foreclose a mechanic’s lien. In the fall of 1867, the defendant contracted with the plaintiffs, who were carpenters engaged in building houses, and furnishing materials for building, to build for him a house, on premises he claimed to oiyn, in the town of Pamelia,' Jefferson county, N. Y., and to furnish lumber and other materials therefor.

The defendant was to pay part cash on completion of the house, and the balance was to be secured to plaintiffs by a mortgage on the house and lot, which was to run a reasonable time. In pursuance of the agreement plaintiffs furnished'lumber and materials, and built for defendant a frame house on the premises in question, which was fully completed on the 4th of May, 1868, and the notice of lien was filed May 14, 1868. The labor, lumber and materials fur*42nished by plaintiffs in building the house, amounted on that day, after deducting all set-offs, to $854.25. Plaintiffs called upon defendant to give mortgage on the premises «to secure it, and defendant refused to do so. The legal title on the 14th of May, 1S68, to the lot on which the Louse was built, 'was in Margaret O’Niel, an infant daughter of defendant— no consideration ever having been paid by her therefor.

The defendant was occupying said house and premises, and his daughter Margaret, was living with him and in his family on that .day. No express bargain for leasing or the' payment of rent, existed between the defendant and his daughter. There had been a house previously on this site, and which had been, burned down, but which was much smaller in size, than the. house in controversy.

The house built by plaintiffs, when built was put.on stones and blocking and remained so, at the time of the filing of the lien, and commencement of these proceedings. The foundation w'as temporary—no plastering or mason work ever having been done to any portion of it.

On the 14th day of May, 1868,- the plaintiffs filed with the clerk of said town of Pamelia, a notice in writing specifying the amount of their cl aim‘for lumber and materials furnished, and labor done on the house, claiming and supposing that the defendant was the owner of the house and premises.

The cause was referred to a referee who made a report in favor of the plaintiffs, December 15, 1868, adjudging and deciding as matter of law.

1st, That the defendant on the 14th day of May, 1868, was the owner of the house in question.

2d, That the plaintiffs by riling their notice with the town clerk, &c., acquired a lien upon the said *house.*

3d, That the plaintiffs were entitled to judgment against the said defendant, O’Niel, for the sum of $254.25, damages with interest thereon fiom the 4th day of May, 1868, besides-costs. December 16j 1868, judgment was perfected on the *43report of the referee, and this appeal was brought from said judgment. ‘

B. Eaglet, *attorney for appellant.*

I. The defendant did not own the premises; he had conveyed the lot to his daughter before he made the contract for building the house. *(Doughty*agt. *Develin,*1 *E. D.*Smith, 626 ; *Sullivan*agt. Decker, 1 *E. D. Smith,*699-700 ; *Quimby*agt. *French,*7 *How.,*350; 17 *How.,*499).

II. The complaint prescribes the lot by metes and bounds and seeks to recover it. There is no description of the house in the complaint. Plaintiffs cannot recover the house and remove it off, as personal property. There is no provision in the statute to authorize a lien on personal property; the house was built to remain there and not with the intention of being removed. (5 *Abb.,*44-48; *Wagner*agt *Wright,*4 *Denio,*180; *Ernst*agt. *Reed,*49 *Barb.,*367).

Mocee *&*Me Cautín, *attorneys for respondents.*

Preliminary Objection.—1. As.no objections to the referees conclusions of fact or- law have been served or filed, the only questions to b.e regarded here, are upon the rulings of the referee during the trial, as to the reception or rejection of evidence. *(Brown*agt. *Irish,*12 *How.,*481; *Freeman*agt. *Rider,*13 *How.,*148; *Code,*§ 258).

2. No exceptions having been taken to the rulings of the referee during the trial, there can be no review of his decision in this court.

I. Though the *title*of the *lot*upon which the building in question was erected, is found by the referee to be in defendants daughter, yet the defendant has an interest to the extent of the building erected on it. The building was put there by the defendant for his own convenience and occupation, and having been in its possession and -occupation ever since its erection, although without any express agreement, he is *44accountable to his daughter for the value of the mesne rents and profits, in other words he is a tenant at will, and as such, has an interest in the premises, within the meaning of the statute. “ The lien given by the statute, *(Ch.,*384, *Laws of*1852), in certain counties, attaches wherever labor is performed or materials furnished for a building, under a contract with the owner thereof, however temporary his interest in the land on which it stands; it attaches to the land and the building to the extent of the interest of the owner of the building in them *respectively.”. (Ombony & Dain*agt. *Jones,*19 *N. Y. R.,*234).

II. The defendant on removing from the premises, could lawfully remove the building he had erected. The foundation being temporary, the entire building resting on stones and blocking, it never became a part of the freehold, but was subject to be removed at any time at the convenience or will of the defendant.

III. The house, thus built upon a temporary foundation, remained the personal property of the defendant, and never became a fixture of the realty, hence the lien given by the statute for the protection of mechanics and laborers attached on the filing of the notice in this proceeding, to the extent of defendants interest in the premises. (3 *R. S. Ch.,*8, *Title*8 *Art. 2 p.*820 § 120; *Ombony et al.*agt. *Jones,*19 *N. Y. R.,*234 ; 1 *Crary's N. Y. Practice,*657).

*By the court,*Mullin, J.

Section 2 of the mechanic’s lien law, *(Laws of*1854, *chap.,*402), gives a lien against the *oioner*to the extent of his interest upon a house and upon the land on which it stands for labor done upon and materials furnished for such building upon the compliance with the provisions of said act.

Unless the person proceeded against, is owner there can be no lien, and if there is no lien there can be no judgment under this act. The defendant and his wife had owned the land on which the house was erected. The wife died and upon her death he became sole owner of the lot.

*45Before the labor was performed or materials were furnished by the plaintiffs, the defendant conveyed said land to his daughter Margaret, who was sole owner at the time of the erection of the house, and had been from April 1867. The bargain for building the house was made in the fall of 1867.

It is thus conclusively established, that defendant did not own the land on which the house stood at the time of the commencement of the proceedings to acquire a lien. Was he at that time or at any time owner of the house ?

The daughter who owned the land was and still is a minor-. The father was her guardian. She lived with him. The dwelling house was burned, and he proceeded to erect another. As guardian he could not, without the authority of a competent court, erect a house on the minor’s land and charge the expense upon the ward. *(Hazard*agt. *Rowe,*11 *Barb.,*22).

In that case the plaintiff was guardian of the defendants, who inherited from their father two lots of land in the city of New York,—the buildings on which had been destroyed by fire. The plaintiff deeming it for the interest of his wards, that new buildings should be erected on the lots, used the insurance money received on insurance of the old buildings, and added to it monies of his own and erected new buildings. He filed a bill to compel the repayment to him of the monies so advanced by him. The bill was dismissed on the ground that the plaintiff could not, without authority of the court, expend his money in improving the land of the ward and be reimbursed out of the wards estate.

If the guardian could not charge the estate of his ward for advances made by himself, it would be difficult to comprehend how he could effect the object by employing another to make such advancement.

By 2d Statutes at Large, page 150, § 20, a guardian is authorized to keep up and sustain the houses, grounds and other appurtenances to the lands of his ward, by and with *46the issues and profits thereof, or with any other monies of his ward in his hands. Keeping and sustaining the houses, &c., of the ward does not include rebuilding—if it did the case of *(Hazard*agt. *Rowe),*would have been decided the other way. (The chancellor held in *Putnam*agt. *Ritchie,*(6 *Paige*390), that a person who, under a misapprehension of his legal rights had made large and valuable improvements on lands of minors, they (the minors) were entitled to the improvements, but were not bound to pay for them—and he further held that the minors were not chargeable with fraud or acquiesence until they became acquainted with their legal rights. In the case cited the-plaintiff had taken from the mother of the defendants, a release of a lease in fee óf premises in question, the rent of which defendants’ father died, seized. She supposed the lease was assets, and that it was for the interest of the children to be released from the payment of the rent, and after plaintiff obtained the release, he entered and made the improvements for which he sought compensation. The defendants had recovered the premises in an action of ejectment, and the bill was filed to restrain that suit until defendants paid him for his improvements. His bill -was dismissed.

In the case before us, the plaintiffs are charged with notice of Margaret’s title to the premises—at all events, they are chargeable with notice that defendant had no title to them when the bargain for erecting the house was made, and they have no reason to complain if with such knowledge, they did the work and furnished the materials sought to be charged as a lien on the house.

The defendant being guardian, and as such having charge of the ward’s land, his possession of it was in his capacity of guardian and could be in no other. He could not by a contract with himself, create the relation of landlord and tenant, and hence his occupation could not be that of a tenant at will.

It is doubtless true that a guardian would b.e liable to *47acco'unt to his ward for the use of the wards lands, if he occupied them for his own benefit. But such liability is not as tenant—but as a debtor having omitted to let the premises to others, he must account for what he ought to have received from them.

Permission to erect on the wards land, a building with the right of removal, could only be obtained from the guardian. This again, made necessary a contract by defendant with himself, so that plaintiffs cannot claim even a license to erect and remove the building that is binding on the ward.

. When the guardian erects a building, especially a dwelling on the wards land, it must be presumed to be a permanent annexation, because it may be attached to the soil, and this presumption is very much increased, when the person erecting the building is the father of the ward. I am unable to discover any ground on which the defendant can be held to be owner of the house, and not being owner there can be no lien.

Whether on the facts proved the plaintiffs can in equity, obtain a lien on the house or house and land, is a question not before us, and upon which' I express no opinion. If there is any such relief it is open to the plaintiffs, if the lien sought to be enforced in this proceeding fails. It is suggested by the plaintiffs’ counsel, that defendant’s counsel has served no exceptions to the findings of the referee, and hence he cannot assail the findings either of fact or law. In this he appears to be mistaken—the case contains exceptions to both. The referee finds the facts as to ownership, precisely as.they were proved by defendant. He had therefore, no ground for excepting to the' facts. The exceptions to the conclusions of law is *“*to all the findings as matter of law.” By the decision of the court of appeals, such an exception is too general, unless all the conclusions of law are erroneous. *(Magee*agt. Baker, 14 *N. Y.,*435).

His conclusions are: *First.*That defendant was owner— *48this is in my opinion clearly erroneous. The *second,*is that plaintiffs by their notice obtained a lien on the house—this is erroneous if defendant was not owner.

The *third*is that plaintiffs were entitled to judgment for their debt and costs. This is.also erroneous, as in this proceeding, no judgment can be rendered for debt and costs, unless a lien has been obtained. The exceptions to the conclusions of law on their face,"are sufficient.and they are before us for review.

The judgment should be reversed with costs. As a new trial would be no benefit to the plaintiffs, none should be awarded.