On petition for rehearing it is contended that the Court overlooked and failed to consider the proposition that the contractor failed to comply with the provisions of Sub-section 3 of Section 4 of Chapter 17097, Acts of 1935.
This was not overlooked.
The amended bill of complaint alleges: "That the plaintiff William C. Reynolds, has served upon the defendants *Page 594 herein a written statement under oath showing the name of each lienor and other parties furnishing labor and materials used in the construction of said building, who have not been paid in full, and giving the amount due each of them for labor and services performed and materials furnished in the construction of said building; said sworn statement being so served upon said defendants by furnishing the same to the said Fred C. LeRoy; and also by furnishing a true copy of said statement to A.T. MacKay, Esq., Attorney for Defendants herein; said statement being so served on the 2nd day of December, 1937; a true copy of said statement is attached hereto, and made a part hereof, marked Plaintiffs' Exhibit 'E.' Plaintiffs further show that the original service of said claims of liens upon the said defendant Fred C. LeRoy, also constituted service and notice upon his wife, Leona A. LeRoy."
The record shows that the interest of the LeRoys was held as an estate by the entireties.
The record shows stipulation at the trial as follows:
"Further stipulated by counsel that on December 2, 1937, a sworn statement of amounts due and payable for materials furnished in the construction of the building involved in this litigation was furnished by William C. Reynolds to the defendant, Mr. Fred C. LeRoy."
The fiction of law as to title to property as an estate by the entireties is based on the unity of husband and wife. The interest of the parties is indivisible. We, therefore, hold that the service of the statement required by the statute, supra, upon Fred C. LeRoy, the husband, constituted sufficient service on the owner.
Other matters insisted upon have been duly considered and found to be without merit.
*Page 595Petition for rehearing denied.
So ordered.
TERRELL, C. J., and BUFORD and THOMAS, J. J., concur.
BROWN, J., concurs in opinion and judgment.
Justices WHITFIELD and CHAPMAN not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.