Opinion
(February Term, 1896.)
MECHANIC'S LIEN, ACTION TO ENFORCE — CONTRACT FOR REPAIRS BY LESSEE — LIABILITY OF LESSOR.
1. Before a mechanic's lien can attach, there must exist the relation of creditor and debtor. A debt must be created before a lien can attach.
2. Where the contract of lease of a hotel provided that the lessee should make and pay for repairs and deduct the cost thereof from the rent, and required the lessee to deposit in a bank a sum out of which the cost of repairs should be paid, and provided that no liens should be created on the property for such repairs, and the lessee was ejected for nonpayment of rent: Held, that a mechanic's lien cannot be enforced against the property of the lessor for repairs made for the lessee, the remedy of the mechanic being against the lessee, to whose contract with the owners the plaintiff should have looked.
ACTION to enforce a mechanic's lien upon the property, described in plaintiff's complaint, belonging to the feme defendants, (917) M. M. Stringfield, wife of W. W. Stringfield, and M. R. Welch, wife of W. P. Welch, tried before Robinson, J., and a jury, at Fall Term, 1895, of HAYWOOD.
Ferguson Ferguson for plaintiff.
R. D. Gilmer for defendants.
After the jury were impaneled the pleadings were read, and the plaintiff tendered issues to be submitted to the jury.
The plaintiff admitted that the contract set out in defendant's answer (the material provisions of which are stated in the opinion of Justice Montgomery) was the contract referred to in plaintiff's complaint. Thereupon his Honor held that, it appearing that this action was brought to enforce a mechanic's lien against the property of the said feme defendants, M. M. Stringfield and M. R. Welch, both of whom were and are married women, the plaintiff, under the pleadings and the said contract referred to therein, could not recover in this action, and gave judgment dismissing the same, as to all the defendants except B. P. Chatfield, and the plaintiff appealed.
The defendants M. M. Stringfield and M. R. Welch were the owners of the Haywood White Sulphur Springs property. They and their respective husbands leased, in writing, the hotel property for three years to the other defendant, Chatfield. The lease provided, among other things, that Chatfield, the lessee, should have certain necessary repairs made upon the property; that he should pay for the same himself and charge the amount so paid for repairs to the lessors, to be deducted from the first year's rent. It was required, also, by the terms of the lease, that Chatfield should deposit $1,000 in the Waynesville Bank, out of which the amount of repairs was to be paid, with the distinct understanding that no liens (918) were to be created on the property on account of the repairs. The rents were to be paid in installments, and it was stipulated that if they were not regularly paid the defendant lessors might enter and take possession of the property. There was a failure to pay rent, and the lessors took possession. While Chatfield was in possession, under a contract between him and plaintiff, the plaintiff made certain repairs upon the property, for which he has not been paid and for which he filed a lien in Haywood Superior Court. This action is brought to enforce the lien by the sale of the hotel property, and to have applied from the proceeds of sale a sufficiency to pay the amount of the alleged lien. This cannot be done. Before a mechanic's lien can attach, there must exist the relation of creditor and debtor. A debt must be created before there can be a lien. Wilkey v. Bray, 71 N.C. 205; Bailey v. Rutjes, 86 N.C. 517. The plaintiff had no contract with the defendants, except Chatfield. The plaintiff should have looked to the contract between the lessors and Chatfield. If he had done so, he would have found that Chatfield was bound to pay for the repairs; that there was a special fund set apart for their payment, and a special provision that the hotel property should not be bound for the repairs. It is unnecessary to pass upon the reasons which his Honor assigned for giving the judgment. The plaintiff could not recover in any event against the defendants Stringfield and Welch nor hold the hotel property liable for the repairs.
No error.
Cited: Baker v. Robbins, 119 N.C. 292; Belvin v. Paper Co., 123 N.C. 151; Weathers v. Cox, 159 N.C. 576; Foundry Co. v. Aluminum Co., 172 N.C. 705. (919)