Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-09-02
COURT. | [ I {. EjCls.I { S;
Notes of Cases Recently Decided, J.
Which are Of Interest to
Our People.
DIGESTED BY W. B. MARTIN.
Exclusively for virginian-Pilotl
WEATHERs v. BoARDERs.

j.
Supreme Court of North Carolina,
May 8, 1899.
A MARRIED .woMAN'S CONTRACT
FOR THE ERECTION OF, A HOUSE
ON LAND WHICH is HER SEPAR-
ATE ESTATE, is NOT VALID UN-
4 LESS, MADE WITH THE WRIT
TEN CONSENT OF HER Illus
BAND, AND THERE IS IS NO
LIEN ON SAID HOUSE AND LOT
FOR THE WORK.
The facts sufficiently appear from the
opinion of the court. the same being
given on a petition for o. rehearing Of
the case.
The court says:
The feme defendant was the owner
of q lot of land. and she and her hus-
band contracted verbally with the
plaintiffs to build a house on this lot,
the house, and they admit that they
have been paid for the same, except
$3T. The plaintiff brought his action
before n justice OF the peace against
the husband and wife for the balance
due him for building the house, and i'll
this action he claims n mechanics lien
on the house for his debt. He rccov-
cred judgment against the husband, but
the court refused to give Judgment
against the feme defendant, and also
refused to declare a lien on the house
In favor OF the plaintiff. This judg-
ment Of The Superior Court was af-
tirmed by this court when 1t was here
before. The petitioner says that this
was error, which he asks to have cor
rected. To entitle a party to a statu-
tory lien Gas this must be, If lien),
OF I'm -ot tn ,t1I
The debt Is the cause of action, and the
lien Is only incident to the debt: There
can be no statutory lien without q
debt for the lien TO rest upon. 1t there
fore follows that plaintiff can have no
lien on the house and lot unless he has
Il debt against the feme defendant,
upon which be could recover Il personal
Judgment against her.
This brings us to a consideration of
section 1926 of the Code, quoted above;
and we find that this section falls to
give the petitioner any right to recov-
CT judgment against the feme defend
ant. The statute declares that no
married woman shall be capable Of
making contracts affecting either her
personal or real estate, except for her
necessary personal expenses, or for the
support Of the family, or such as may
he necessary to pay her debts, unless
with the written consent OF her hus-
band existing al the time of her mar
riagc, unless she be q free trader 1t
Isl admitted that she Is not a free trad
cr, and 1t is perfectly apparent to us
that the building of house on lot
belonging to the feme defendant does
not fall under any one of the eXcep-
tons contained in section 1896. 1t is not
necessary personal expenses, 1t is not
what could be termed expenses incurred
Tor the support of the family, and 1t is
not claimed that it is for q debt due
at the time of her marriage. With this
Interpretation OF section 1926, which
seems to us 10 be so manifcstly correct
that we hardly see how 1t could be un-
Gerstood otherwise, we fail to see the
error in the former opinion and judg-
ment of this court which the petitioner
seeks to point out.
But If the plaintiff had been able to
establish n debt, and to have obtained
a judgment against the feme defend
ant FOR any of the excepted matters in
section 1S2G, for which she may con-
tract, such judgment would not have
been 4 lien on the real estate (the house
ana loD of the feme defendant, al
though her personal estate would be
liable for the payment of such judy
ment. This doctrine has been announc-
ed by this court In a great number of
cases. We therefore see no grounds
upon which plaintiffs claim could be
declared lien on the house and lot,
the real estate of the feme defend
ant, even II he could get judgment
against her
1t is contended in the petition to re-
near (used as brieD that the feme
defendant did not plead her coyerture
But 1t appeared all through the case
That she was feme covert. and. this
appearing. 1t was the duty Of the court
10 see That she had the benefit of this
defense. Petition dismissed.
Tho Oystor season.