DIVISION III. INFANTS.

No Lien on Land of Minors.

§ 282. The argument against mechanics' liens on the land of married women applies with still greater force in regard to liens on the lands of infants, since their inability to contract is more absolute than that of married women. Accordingly work done or materials furnished under a contract made with an infant for the improvement of his property does not create a lien, since the contract is not binding. 100 Building materials cannot be considered necessaries.101 And declarations of the infant that he was of full age when he made the contract are not sufficient to support the lien as against a subsequent purchaser from him. 102 In a recent case in Pennsylvania a mechanic's lien was foreclosed against a father and his infant child, the title to the land being in the name of the infant. The infant was not served with process, and no guardian ad litem was appointed. In ejectment by the infant against defendants, who purchased the lot under the foreclosure proceedings, defendants offered to prove that the father purchased and paid for the land before the infant's birth, but thereafter had it conveyed to the infant, and, after the deed had been recorded, induced the parties who filed the lien to erect a building on the lot on his representations that he owned it; but the court held that such evidence did not tend to rebut the prima facie case presented by the deed to the infant, and was properly rejected.103 In Missouri, however, the statute expressly includes minors of the age of 18 among the persons against whom mechanics' liens will lie for improvements erected for their benefit."

Work Ordered by Guardian.

104

§ 283. Where a mechanic performs work on the property of minors under a contract with the guardian, the mechanic's lien cannot be

100 Hall v. Kjer, 47 N. J. Law, 340; Alvey v. Reed, 115 Ind. 148, 17 N. E. 265; McCarty v. Carter, 49 Ill. 53; Bloomer v. Nolan, 36 Neb. 51, 53 N. W. 1039. 101 Price v. Jennings, 62 Ind. 111.

102 Price v. Jennings, 62 Ind. 111.

108 Brown v. Downing, 20 Atl. 871, 137 Pa. St. 509.

104 Tucker v. Gest, 46 Mo. 339; Burgwald v. Weippert, 49 Mo. 60.

enforced, where the guardian has not obtained an order of the court authorizing him to do the work.105 And it has even been held that a mechanic's lien would not lie where the guardian erected a building on the land of his minor wards under an order of the probate court granting him leave "to erect out of the funds of said wards a building upon their lot," since such order did not authorize the construction of a building upon credit.106 But in a recent case in Kentucky, where a guardian of minor children, in good faith, but without any authority from the chancellor, reconstructed an old building on the children's land, which enhanced the value of the property and enabled them to realize an income therefrom, it was held that material men, whose property had been in good faith used in making the improvements, were equitably entitled to be paid the actual cost of their materials out of the enhanced rental value of the property by reason of the improvements, after deducting therefrom the insurance, taxes, and costs of keeping the premises in repair.107 Work performed on land of a testator under a contract with the executor, who is also a devisee, cannot create a lien on the interest of another devisee who is a minor.1 108

DIVISION IV. CORPORATIONS.

Private Corporations.

§ 284. The property of private corporations is as subject to mechanics' liens as that of individuals. Thus there may be mechanics' liens on church buildings,109 except where the title is held under a

105 Guy v. Du Uprey, 16 Cal. 196; Fish v. McCarthy, 31 Pac. 529, 96 Cal. 484; Copley v. O'Niel, 57 Barb. (N. Y.) 299.

106 Payne v. Stone, 7 Smedes & M. (Miss.) 367.

107 Bent v. Barnett, 14 S. W. 596, 90 Ky. 600. In a second decision in the same litigation it was held that mechanics who reconstruct an old building standing on land belonging to minors, under a contract made with their guardian without authority of court, have no equitable claim to any part of the rent of the building where it does not appear that the reconstruction of the building increased its rental value. Id., 26 S. W. 537, 95 Ky. 499.

108 Ness v. Wood, 44 N. W. 313, 42 Minn. 427.

109 Jennings v. Hinkle, 81 Ill. 183; Gortemiller v. Rosengarn, 2 N. E. 829, 103 Ind. 414; Jones v. Trustees, 30 La. Ann. 711. A dictum to the contrary

deed which declares that it is never to be sold or used in any other way but for the use of a church.110 And where the improvements for which the lien is claimed were voted by a majority of the church society and its trustees, the fact that the lien claimant knew that the society relied on voluntary contributions to pay for the same does not affect the lien.111 If the title stands in a trustee or officer of the church, he must be made a party defendant to any suit to foreclose the lien.112

§ 285. Private schools and colleges are also subject to liens. Thus a college building, erected and maintained by a religious society, is subject to the mechanic's lien law, since it is not exempt, on any grounds of public necessity, from seizure and sale under execution.113 And a corporation created by the state for the purpose of maintaining a normal university whose buildings are given to it by private persons is a private corporation whose property is subject to mechanics' liens. 114 It has been held also that a proviso in a statute establishing a university, prohibiting the trustees "for any cause, or under any pretext whatever, from incumbering, by mortgage or otherwise, the real estate or any other property of said institution, or involving it in any debt which they have not the means of paying." will not exempt a building erected by the university corporation from the remedies provided by the mechanic's lien laws.115

§ 286. It is held in Pennsylvania that an incorporated waterworks company organized for the purpose of supplying water to a city, which corporation has the power of eminent domain, and which is required eventually to transfer its property to the city, is not a private, but a public, corporation, and its property is therefore exempt from mechanics' liens; 116 while in Wisconsin it is held that public policy forbids the creation of mechanics' liens on the whole or on any essential part of the waterworks of a corporation organ

is found in Beam v. Methodist Episcopal Church, 3 Clark, 343, 5 Pa. Law J. 286.

110 Grissom v. Hill, 17 Ark. 483.

111 Gortemiller v. Rosengarn, 2 N. E. 829, 103 Ind. 414.

112 Peabody v. Society, 5 Allen (Mass.) 540; Keller v. Tracy, 11 Iowa, 530. 113 Ray County Sav. Bank v. Cramer, 54 Mo. App. 587.

114 Board of Education v. Greenebaum, 39 Ill. 610. 115 University of Lewisburg v. Reber, 43 Pa. St. 305. 116 Foster v. Fowler, 60 Pa. St. 27.

ized to furnish a city with water.117 And under a statute merely giving a lien for machinery furnished "for any mill, distillery, or other manufactory," there can be no lien for machinery furnished to a waterworks company, since such a company does not manufacture anything.118 But a corporation whose business is the transaction of a general storage and elevator business, which advances money and issues warehouse receipts, is not a public corporation in which the interest of the general public is such that the real estate of the corporation should be exempt from the operation of the mechanic's lien laws.119 And an electric light company, which has a franchise to occupy the streets of a city with its poles, wires, and lamps, and is engaged in furnishing light to the people of the city, is not so distinctively public in its nature and operations as to exempt its property from the application of such laws.120

§ 287. A contract made on behalf of the corporation by its president,121 or one of the incorporators, 122 is sufficient to sustain a lien for work done under it. Notice to the president of the corporation that the work is being done is notice to the corporation,123 but notice to a director is not.124 Where corporate property is in possession of a stockholder who owns all the stock, a contract with him will give a lien against the corporation's property.125 For work done for the incorporators before they had become incorporated, a lien has been allowed against the property after the corporation had been organized and had acquired title.126

117 Chapman Valve Manuf'g Co. v. Oconto Water Co., 60 N. W. 1004, 89 Wis. 264. Under the same statute it had been previously held by the United States courts that public policy did not forbid the creation of liens on such property. Oconto Water Co. v. National Foundry & Pipe Works, 7 C. C. A. 603, 59 Fed. 19.

118 Kentucky Lead & Oil Co. v. New Albany Waterworks, 62 Ind. 63. 119 Girard Point Storage Co. v. Southwark Foundry Co., 105 Pa. St. 248. 120 Badger Lumber Co. v. Marion Water Supply, Electric Light & Power Co., 30 Pac. 117, 48 Kan. 187.

121 Hearne v. Railroad Co., 53 Mo. 324.

122 McFall v. Ice Co., 16 Atl. 478, 123 Pa. St. 259.

123 Phelps v. Mining Co., 49 Cal. 337.

124 Lothian v. Wood, 55 Cal. 159.

125 Watson v. Bridge Co., 13 S. C. 433.

126 Mountain City Market House & Hall Ass'n v. Kearns, 103 Pa. St. 403.

In some states employés of private corporations have liens on all the corporate property in case of insolvency or dissolution; but, as these liens are general, and as there is no necessary connection between the work for which the lien is claimed and the property to which it attaches, they do not come within the scope of this work, or within our definition of a mechanic's lien.

Public Corporations.

§ 288. As public property is, as a general rule, exempt from me chanics' liens,127 public corporations are not often defendants in proceedings to foreclose them. In some states, however, a right of action is given, though the lien is denied. Thus, in New Jersey, a mechanic employed by a contractor on work for a city may sue the city for a money demand, although he has no lien.128 Under an act which declares that any subcontractor who has performed labor for the construction of any road or other public improvement under a contract with the general contractor may acquire a right to any money due the contractor from the county on account of such improvement, the subcontractor may have the money due the principal contractor held to meet his claim, if found to be correct and just.129 And under a statute authorizing a city to withhold from contractors the amounts due subcontractors who have given notice the court may direct the city to pay over such amounts to the subcontractors, although they can have no lien on the property.150 In a case in New York it appeared that the city of New York had a rule under which it retained the last installment of pay due a contractor for evidence that he had paid all persons who had done work or furnished materials under the contract, and it was held that even though a material man could obtain a lien upon this fund, he could not obtain a lien upon the balance due under one contract for materials furnished upon another. 131 A statute giving a lien on city schoolhouses in

127 See ante, § 208 et seq.

128 Frank v. Board of Chosen Freeholders, 39 N. J. Law, 347.

120 Clark v. Haggerty, 5 Ohio Cir. Ct. R. 235.

130 Merchants & Traders' Nat. Bank v. Mayor, etc., of City of New York, 97 N. Y. 355.

131 Quinlan v. Russell, 94 N. Y. 350.