Nelson v. Cover

47 Iowa 250

Opinion

Adams, J.

1. mechanic's o£ wiie.opei ty The plaintiff seeks to establish an equitable lien upon the premises in question, and relies upon Miller v. Hollingsworth, 36 Iowa, 163. In that case an equitable lien was allowed to a mechanic as against the property of a married woman, where a mechanic’s lien had been previously denied. The contract was made with the husband, but the labor and materials were furnished with the wife’s “ full knowledge and acquiescence,” and this was made substantially the ground upon which the court established the lien as prayed.

But that case differs materially from the case at bar. The plaintiff is a sub-contractor. His contract, whatever it was, was not with the defendant. He could have no lien, therefore, independent of statute. Without determining whether, if, he had taken the steps pointed out by statute to establish a lien, a court of equity could supplement the statute and afford him the relief which he asks, it is sufficient to say that the requisite steps do not appear to have been taken. No notice appears to have been given to the defendant of the plaintiff’s intention to furnish the materials, and no settlement in writing appears to have been made with the contractor, and given to the defendant, her agent or trustee. The defendant would have been justified in settling with the contractor, and may have done so in fact. Sd .there may be nothing due-from the contractor to the. plaintiff. The judgment against the defendant’s'husband is set-out in the petition as if she.was .concluded thereby, but such cannot be its effect.

We think that the demurrer to the petition was properly sustained. The judgment of the court below is, therefore,

Affirmed.