delivered the opinion of tho court,
It is essential to the validity of a mechanic’s lien against the separate estate of a married woman that the claim should set forth, among other things, that the work was done and the materials were furnished with her authority and consent; in other words, that she, or some one authorized by her, contracted therefor. Her property is not subject to a lien for work done or materials furnished under a contract with her husband, unless it is made by her authority; nor can he, by any act of his, encumber her real estate without her consent, even for the purpose of making necessary repairs. All the facts necessary to create a lien against her separate estate must be distinctly averred in the claim : Dearie et ux. v. Martin, 28 P. F. Smith 55; Lloyd v. Hibbs, 31 Id. 306; Schrifer v. Saum et al., Id. 385. The claim in this case appears to have been carefully drawn, and contains all the averments necessary to constitute a valid lien. After setting forth, in due form, the nature of the claim, the kind and amount of materials furnished, work done, &c., it is averred that “ the said work was done and the said materials were furnished with the knowledge and consent, and at the request and with the authority, of said Rebecca Henderson, wife of the said James B. Henderson, for the purpose of, and were actually used in, repairing her separate real estate, and were useful and necessary for the enjoyment of her separate real estate, and the debt was contracted by the said Rebecca Henderson.”
We have not been furnished with the affidavit of claim, but assuming, as was done in the court below and here, that it was in due form, the plaintiffs were entitled to judgment, unless the affidavit of the defendants, assuming the facts therein to be true, disclosed a valid defence. When suit is properly brought against a married woman on a claim for which, upon its face, she or her separate estate is prima facie liable, the plaintiff is entitled to judgment, for non-compliance with the rules of court, as though she were a feme sole. As to appearance, rules to plead, affidavits of defence, &c., she' has the same rights, and is subject to the same *316duties and penalties, as others who defend in their own right and not in a representative capacity.
In the joint affidavit filed by Mr. and Mrs. Henderson it is averred that they have a defence “ in that the said Rebecca Henderson never contracted for the articles specified in the bill of particulars filed, and alleged by the plaintiffs to have been furnished by them,” and further “that the charges, or some of them, are in excess of what the plaintiffs agreed with the said James B. Henderson to furnish them for to him — all of which they verily expect to prove.” Thus, the material averment in the claim, that the debt was contracted by Mrs. Henderson, is not only traversed by the defendants, but this positive denial is followed by averments the substance of which is that the plaintiffs agreed with the husband to furnish to him the articles mentioned in the bill of particulars, and that some of their charges are in excess of what they agreed to furnish them for. The affidavit of defence is not fairly susceptible of any other meaning; and, assuming as we must, for the present purpose, that these allegations are true, they constitute a good defence to the plaintiffs’ claim, and necessarily send the case to a jury, whose province it will he to determine the disputed questions of fact. If the plaintiffs fail to show that the work and materials were contracted for by Mrs. Henderson, or by some one having authority from her to do so, they cannot recover.
The order of court discharging the rule for judgment is affirmed.