such machinery.50 The interest of a purchaser under a contract providing for forfeiture on default in payment is not a "leasehold," within the purview of an act providing that, where the owner has only a leasehold interest, the lien, so far as concerns the building erected by the lienholder, is not impaired by the forfeiture of the lease for rent.51

DIVISION III. HOMESTEADS.

Exemption from Lien.

§ 135. In most, if not in all, of the states, homesteads are exempt from judicial sales. Where the statute creating the homestead exemption contains no exception in favor of mechanics, there can be no mechanic's lien on a homestead. Thus, under Rev. St. U. S. 1878, § 2296, providing that no lands acquired under the provisions of the homestead act "shall in any event become liable to the satisfaction of any debt or debts contracted prior to the issuing of the patent therefor," a mechanic's lien will not attach to a dwelling house situated on government land occupied under the homestead act, built on a solid stone foundation, and permanently attached to the soil, the patent for the land not having yet been issued. And, under a constitutional provision that "a reasonable amount of property shall be exempt from seizure or sale for the payment of any debt or liability," a homestead is not subject to a mechanic's lien.53 The exemption of the homestead may be insisted on by a mortgagee or a purchaser at a mortgage foreclosure," and the lien claimant cannot

50 Newell v. Haworth, 66 Pa. St. 363.

51 Davis v. Elliott, 34 N. E. 591, 7 Ind. App. 246.

52 Kansas Lumber Co. v. Jones, 4 Pac. 74, 32 Kan. 195. But where a lien was claimed for machinery placed on the land before the homestead patent issued, it was held in Wisconsin that, although the person furnishing such machinery could acquire no interest in the land, his lien upon the machinery might be enforced. Paige v. Peters, 35 N. W. 328, 70 Wis. 178.

53 Cogel v. Mickow, 11 Minn. 475 (Gil. 354); Coleman v. Ballandi, 22 Minn. 147; Keller v. Struck, 18 N. W. 280, 31 Minn. 446; Meyer v. Berlandi, 40 N. W. 513, 39 Minn. 438. But an exemption of $300 worth of property from "auy judgment upon a contract" applies only to personal judgments, and not to judgments foreclosing mechanics' liens. Lauck's Appeal, 24 Pa. St. 426. 54 Talbot v. Barager, 34 N. W. 23, 37 Minn. 208.

complain because the homestead is assigned out of partnership lands.55

Statutory Provisions.

§ 136. Many of the homestead statutes, however, either expressly or impliedly exclude mechanics' liens from their operation. Thus, a provision that a homestead "shall not be subject to forced sale for debts, except they be for labor and materials expended thereon," allows mechanics' liens to be created on homesteads in cases in which they would be created on other lands.58 And a provision allowing homesteads to be judicially sold only on foreclosure of a "mortgage lawfully obtained" has been held broad enough to allow mechanics' liens on homesteads, upon the theory that such a lien is a species of statute mortgage."

§ 137. Statutes exempting homesteads from execution sale except for "debts secured by mechanics', laborers', or vendors' liens," do not make them subject to the lien of a mere material man, who furnishes materials, but does no work; 58 neither do statutes excepting from the homestead exemption mechanics' liens for work done on the premises.59 But it has been held under a provision making homesteads liable for "laborers' and mechanics' liens" that a manufacturer of lumber, who furnishes lumber for a homestead, has a lien as a mechanic.60 Under such a statute, a plasterer, who plasters a homestead, and sets a mantel therein, has a lien for his labor and his materials, as being both a laborer and a mechanic.61

55 McMillan v. Williams, 13 S. E. 764, 109 N. C. 252.

* Campbell v. Fields, 35 Tex. 751; Pope v. Graham, 44 Tex. 196. To the same effect, under provisions similar to the one quoted, are Thompson v. Wickersham, 56 Tenn. 216, and Tyler v. Jewett, 2 South. 905, 82 Ala. 93.

7 Hammond v. Wells, 7 N. W. 218, 45 Mich. 13.

58 Richards v. Shear, 11 Pac. 607, 70 Cal. 187; Walsh v. McMenomy, 16 Pac. 17, 74 Cal. 356. A contrary decision was rendered by a divided court (De Witt, J., dissenting) in the case of Bonner v. Minnier, 34 Pac. 30, 13 Mont. 269, in which it was held that a lien for materials furnished by a mere material man who does no labor is a "mechanic's lien," within the meaning of a statute declaring that the homestead exemption "shall not affect any laborer's or mechanic's lien."

5 Cumming v. Bloodworth, 87 N. C. 83.

eo Gulledge v. Preddy, 32 Ark. 433.

61 Merrigan v. English, 22 Pac. 454, 9 Mont. 113.

I

§ 138. Where the statute excepts from the homestead exemption liabilities "contracted for improvements made thereon," the property may be sold under a judgment upon such a liability, even though there was no mechanic's lien, since the debt for the improvement may remain though the lien of the mechanic is lost.62 But in such case a sale of the property pending the suit defeats the right of sale, since such a judgment is a lien on the homestead only from the date of its entry.

63

64

§ 139. It has been held, in Minnesota, that a homestead exemption law which declared that "such exemption shall not extend to any contract for a lien, or upon which a lien would arise, under the lien laws of this state, for work done or material furnished in the erection or repair of a building," did not allow mechanics' liens on homesteads where there was no express stipulation for a lien; ** and, in Texas, that, as between the parties, a contract for a lien on a homestead for work and material gives a lien, without record thereof, which lien need not be enforced in the manner or within the time prescribed for statutory mechanics' liens.65 But, as a general rule, the provisions of the statute must be complied with substantially in every respect, in order to fix a mechanic's lien on the homestead."

62 Miller v. Brown, 11 Lea (Tenn.) 155. 63 Dean v. McAdams, 22 Kan. 544.

66

64 Coleman v. Ballandi, 22 Minn. 144. This was on the theory that a mechanic's lien does not arise from contract, but from operation of law.

65 Lignoski v. Crooker, 24 S. W. 278, 788, 86 Tex. 324; Lippencott v. York, 24 S. W. 275, 86 Tex. 276. These cases proceed upon the theory that these are contract liens, and not mechanics' liens. It has also been held in that state that a contract whereby a loan company agreed to furnish all the labor and material necessary in the erection of a dwelling house, and in consideration thereof to retain a lien on the premises for the moneys paid therefor, which was executed by weekly payments made by the loan company to the contractor for the labor and material, there being no evidence that the contract was a subterfuge to cover up a loan on the homestead, gave a lien on the premises, and did not constitute a mortgage on the homestead. Pioneer Savings & Loan Co. v. Edwards (Tex. Civ. App.) 34 S. W. 192.

66 Sternberger v. Gowdy, 19 S. W. 186, 93 Ky. 146; Tinsley v. Boykin, 46 Tex. 592; Campbell v. Fields, 35 Tex. 751.

(138)

Consent of Wife.

140. Although the general rule is that a homestead cannot be conveyed or incumbered without the wife's consent, yet where the statute allows mechanics' liens upon homesteads, and does not expressly make the wife's consent a necessary prerequisite, the lien will not be vitiated by the want of her consent to the creation of the debt secured by the lien."7 But where the statute requires that, to create a lien upon a homestead for materials used in constructing improvements thereon, they must be contracted for in writing, with the consent of the wife, given in the same manner as is required in making a sale of the homestead, her consent must precede the purchase of the material, or there is no lien,s though even in such case a material man who has furnished material both before and after such consent is entitled to a lien for such material as he furnished afterwards."

Need of Written Contract.

§ 141. Where the statute requires the contract to be in writing in order to create a lien on a homestead, there can, of course, be no lien thereon, unless the contract is in writing; 70 and only for materials furnished in pursuance of such written contract will a lien lie." Where the statute requires the contract to be signed by both husband and wife, and acknowledged by her, and recorded, it must

67 Miner v. Moore, 53 Tex. 224; Phelps & Bigelow Windmill Co. v. Shay, 48 N. W. 896, 32 Neb. 19; Palmer v. Lavigne, 37 Pac. 775, 104 Cal. 30.

68 Lyon v. Ozee, 17 S. W. 405, 66 Tex. 95; Ricker v. Schadt, 23 S. W. 907, 5 Tex. Civ. App. 460.

69 Walker v. House (Tex. Civ. App.) 24 S. W. 82; Heady v. Association (Tex. Civ. App.) 26 S. W. 468.

70 Campbell v. Fields, 35 Tex. 751; Huff v. Clark, 59 Tex. 347; Merchant v. Perez, 11 Tex. 20; Mills v. Hobbs, 42 N. W. 1084, 76 Mich. 122. But a mechanic's lien upon a homestead may be enforced in favor of persons other than the original contractor or his assignee, under a statute providing that the lien and contract shall inure to the benefit of artisans, etc., who shall have improved or furnished material for a homestead. Fullen wider v. Longmoor, 11 S. W. 500, 73 Tex. 480.

71 Taylor v. Huck, 65 Tex. 238.

also be acknowledged by him.72 A provision that a homestead can be judicially sold only on foreclosure of a "mortgage lawfully obtained" impliedly requires contracts on which mechanics' liens on homesteads are to be based to be in writing, and to describe the land, since a mortgage must necessarily be in writing, and must describe the land.73

74

Question of Time.

§ 142. Where a homestead exists before the making of certain improvements, it is superior to a mechanic's lien for such improvements, unless the right is waived in the manner pointed out by the statute; but, where the land is not a homestead at the time the lien attaches, no subsequent act of the owner can create a homestead right superior to the lien.75 Thus, where the filing of a declaration of homestead is essential to the creation of a homestead estate, a lien which has attached will not be affected by such a declaration subsequently filed.76 But in states where no such declaration is re

72 Kalamazoo Nat. Bank v. Johnson, 24 S. W. 350, 5 Tex. Civ. App. 535. Because in that state acknowledgment is necessary to recording.

73 Hammond v. Wells, 7 N. W. 218, 45 Mich. 13; Burteh v. McGibbon, 56 N. W. 1110, 98 Mich. 139.

74 Roberts v. Riggs, 1 S. W. 431, 84 Ky. 251.

75 Swope v. Stantzenberger, 59 Tex. 387; Tuttle v. Howe, 14 Minn. 145 (Gil. 113). There is also a dictum to the same effect in Roberts v. Riggs, 1 S. W. 431, 84 Ky. 251.

76 Davies-Henderson Lumber Co. v. Gottschalk, 22 Pac. 860, 81 Cal. 641. A contrary view seems to have formerly prevailed in that court. Walsh v. McMenomy, 16 Pac. 17, 74 Cal. 356.

The statutes of Washington provide that a homestead may be selected at any time before sale, and that neither the husband nor wife can select a homestead from the separate property of the other; but either may select and hold one from his or her separate property, and the husband may select one from the community property, and, if the husband does not select one, the wife may: provided that but one homestead shall be selected or held by husband or wife, and it must embrace the dwelling house in which one or both of them reside. No provision is made for the manner of identifying or selecting a homestead. Under these statutes it has been held that, where the house on the separate property of the husband burns down, the person building a new house thereon under contract with the husband may have a mechanic's lien thereon, though he know that the husband and wife lived in the old house, and intend