The first question submitted, upon the argument of these exceptions, arises upon the notice, filed in the city clerk's office, with the account, for the amount of which the lien is claimed. The filing of the account there, is declared by the statute, to be the commencement of legal process to enforce the lien created; and the statute provides, that in addition to the filing the account, the petitioners shall give notice to what building, land, c., and "to what or whose estate in the same, the said account or demand refers;" and this notice shall be made matter of record by the clerk. The petitioners duly filed their account, and gave notice that it related to the estate of Elizabeth A. Patten, the wife of George W. Patten, another of the respondents here, and of Aden Patten, Jr.; describing the land and buildings, as being the estate conveyed by Henry Waterman and wife to the said Elizabeth and the said Aden, by deed dated April 11, 1856. The notice, however, mentions no estate or interest of George W. Patten, as an estate, or interest, in the premises described, upon which they claimed that the lien had attached, or to which the account related; and the question is, whether the petitioners can now proceed to enforce a lien against any estate that he may have *Page 379 in the premises. The purpose of the act, in this provision, was, to require the lien-claimant to state, not merely the land or property to which the lien may have attached, but also upon whose interest therein he claimed that the lien had attached, and against which it should be enforced. This, he was required to do, not only that the several owners might have notice to defend their respective interests, but, since the lien would be an encumbrance upon the property, to give notice to creditors and purchasers, of encumbrances affecting the title. In view of this provision of the act, and of the fact, that no notice is given that the account refers to the estate of George W. Patten in the premises described, we do not see how the petitioners can now proceed to enforce a lien against any interest which he may have.
It is urged by the petitioners, that as their account filed is one against all the respondents, the said George W. Patten, as well as the others, Elizabeth and Aden, the notice may well be, and ought to be intended, as relating to his interest also, as one to which the account refers, and against which the lien was intended to be enforced. The statute is quite clear in its provisions in this respect, and we must presume the petitioners understood its terms. If so, it must be presumed, also, that in neglecting to state that the account referred to any interest of George W. Patten, they waived any lien as to him, though they might have a personal claim.
On the trial of the cause to the jury, it was in evidence, that the contract, under which the work was done, was made with the petitioners, by George W. Patten alone. There was no other evidence of any request to them by the wife, to do the work, given or offered for that purpose than this, that on one occasion she was at the house where the petitioners were at work, and stated what were her husband's wishes in regard to the border of some paper in the entry, and added, "if George (her husband) was suited, all would be suited." This act of the wife, the petitioners claim, was evidence of a request on her part for the performance of the work, sufficient to bind her estate; and the court instructed the jury, that they might infer such request from the evidence. This instruction is excepted to by the respondent. *Page 380
One objection made by the respondent to this instruction, is that no lien can be created upon the estate of a married woman unless by an instrument, executed with the formalities required by the statute of conveyances, sealed, and acknowledged by her, apart from her husband, and that a lien cannot be created by parol, as is claimed in this case. This position is untenable. The act declares that the estate shall be made liable, and stand pledged for all work done thereon "by contract with, or at the request of the owner." The lien is created by force of this act alone. If, therefore, there be a contract for the work, or if there be a request for its performance by the owner of the premises, the lien attaches, without more. By the Revised Statutes, in case of a married woman it is required, that this request or contract shall be in writing. The former act, under which this proceeding was had, contains no such provision; but the contract, or request, need be proved by such evidence only, as would be requisite, in other cases, by the rules of evidence.
The other objection, made by the respondents to this instruction to the jury, was, that if parol evidence is admissible to prove a request by Elizabeth A. Patten, the wife, yet that the evidence offered on the trial was wholly insufficient, and does not amount to prima facie proof of such request by her. In this objection there is certainly much force. The contract for this work, as the exceptions state, was originally made by George W. Patten alone, and in his own name. The work commenced under that contract with him, and as it appears, without any concurrence on the part of the wife. In the progress of the work, she comes apparently to convey to the petitioners a message from the person who had contracted with them; she is the wife of the person at whose request the work was commenced. She expresses merely his desire as to the manner in which it should be done, and apparently as his agent; and certainly she does it in a manner in which a wife might be expected to communicate such a message. She expresses no wish of her own, gives no direction, makes no inquiry, assumes no responsibility; much less does she express any wish or desire that the work should be done for her, or at her expense. To say that if it pleased her husband it would *Page 381 please herself, and all would be pleased, is but saying that she and they desired that his wishes should be gratified. No suggestion is made by any one, as to the circumstances under which the petitioners were employed, from which any implication of a request might properly be drawn from her silence; and the whole evidence lacks the first element of any affirmative request; and we think it entirely insufficient to warrant a verdict, and that this exception should be sustained.
The third exception, which is to the instruction given by the court upon the evidence submitted to prove a request by Aden Patten, must be sustained. The evidence, as stated, is simply that he passed the house on one occasion while the work was in progress, and saw one of the petitioners at work there, and passed on. It does not appear that he had any communication with either of the petitioners, — that he knew what they were doing, for whom, at whose request, that he made any inquiry, or that any was made of him, or that he had any intimation, that work was done on the credit of the estate, or that the petitioners looked to it, or to him, for payment.
The instruction to the jury that they might infer a request of Aden Patten to do the work, we think, was erroneous; and this exception must also be sustained.
New trial granted.