delivered the opinion of the Court:
The first section of the statute in relation to Mechanic’s Liens provides, that any person “who shall, by contract, express or implied, or partly expressed and partly implied, with the owner of any lot or piece of land, furnish labor or material” in erecting a house or other building on such land, shall have a lien upon the lot or piece of land and upon the building for the amount due him for such labor and material. It thus appears that the first and indispensable requisite is, that the labor and material for which the lien is sought to be enforced shall have been furnished by the petitioner, under and in pursuance of a contract with the owner of the land.
The petitioner in this case alleges and relies upon an express contract between him and Fannie Jacobson, the owner of the land. He avers in his petition that this contract was executed on behalf -of Fannie Jacobson, by Morris Jacobson, her husband and agent, and a copy of the contract is exhibited and made a part of the petition. On referring to the contract itself, we find a document which makes no reference whatever to Fannie Jacobson, but which purports to be a contract between Archibald Campbell, party of the first part, and Morris Jacobson, party of the second part, and the contract is executed by these parties under their respective hands and seals. In the body of the contract Morris Jacobson is referred to as the owner of the premises upon which the proposed buildings were to be erected. Unless this can be held to be in fact the contract of Fannie Jacobson, the petitioner has manifestly no title under the statute to a lien, at least upon the case made by his pleadings.
At the time the contract was executed Fannie Jacobson was not present, nor had she taken any part in the negotiations out of which the contract grew. The petitioner at that time had no actual knowledge that she was the owner of the lots upon which the proposed buildings were to be erected, but supposed that they belonged to Morris Jacobson, and the contract was entered into by him on that basis. He treated with Morris Jacobson as a principal contracting party, and not as the agent of his wife, and upon the face of the contract as executed, Morris Jacobson appears to be a principal. The only theory upon which Fannie Jacobson can now be substituted in place of her husband as a party to the contract is, that she was an undisclosed principal, and that her husband, in entering into the contract, really acted as her agent.
The petitioner having alleged and relied upon a contract thus executed under seal by Morris Jacobson as the ostensible principal, there may perhaps be difficulty, on technical common law grounds, in holding Fannie Jacobson liable thereon as an undisclosed principal. But, waiving that point, it is very clear that the burden of showing that the relation of principal and agent existed between Fannie Jacobson and her husband, and that he had authority to enter into a contract, on her behalf, for the erection of buildings on her lots, is on the petitioner.
After carefully considering the evidence bearing upon this question, we are brought to the conclusion that .the chancellor who heard the cause was justified in holding that the preponderance of the evidence on this point was against the petitioner. No direct evidence was offered of any authority, on Morris Jacobson’s part, to act as his wife’s agent in the premises. She testifies positively that she never gave him such authority, and that she did not even know that the contract was made, or that the erection of the buildings was in contemplation, until at least a month after the date of the contract, nor until the buildings were well under way. She further says, that when she learned of the enterprise, she strongly objected to it, and made such objections repeatedly afterwards; that she was at the buildings, as she thinks, but once or twice while they were in process of erection, and that was when they were nearly finished.
Morris Jacobson testifies that, in executing the contract, he was acting for himself and not in any way for his wife; that he did not represent her, and had no authority so to do; that in his negotiations with the petitioner, her name was not mentioned; that she had nothing whatever to do with the construction of the buildings, and knew nothing about what he was going to do; and that he merely went to work with his own money and erected the buildings.
One of the witnesses, who was the petitioner’s foreman, testifies that about October 21st, and when the buildings were nearly completed, Mrs. Jacobson came there, and that he, at her request, explained to her what the “trim” was to be, she saying at the time that Mr. Jacobson had already explained it to her; that she said she was well pleased with the “trim” they were putting on; that she was not at all pleased with the other, and was glad that Mr. Jacobson had had it changed, and that she had ordered it to be changed. Mrs. Jacobson, on the other hand, positively denies that she made these statements, or that she ever gave any orders or directions in relation to any changes or alterations in the buildings.
Another circumstance relied upon by the petitioner, to show the agency of Mr. Jacobson is, that during the construction of the buildings Jacobson negotiated a loan, in order to get the means to complete the buildings, and that to secure the loan, Mrs. Jacobson joined with him in the execution of a deed of trust on these lots, with the understanding that the money borrowed should go into his hands to be used for that purpose. This she did, as she explains, "upon his telling her that he wanted' to go on finishing the buildings, and that unless he had more money to go ahead with, he would lose what he had already invested; that he wished her to go his security, and that, to relieve him of his embarrassment, she consented to do so, and executed the deed for that purpose. It also appears that after the buildings were completed, Mrs. Jacobson permitted her husband to collect the rents therefor without accounting to her for the same.
The foregoing are substantially all the facts relied upon as tending to charge Mrs. Jacobson as an undisclosed principal, upon the contract entered into by her husband. We are of the opinion that, when all the evidence is considered, these circumstances are insufficient to produce that result. None of them seem to us to be necessarily inconsistent with the theory, supported by the testimony of Mr. and Mrs. Jacobson, that the erection of the buildings, though on Mrs. Jacobson’s property, was an enterprise undertaken by Mr. Jacobson for himself and in his own interest, and without his wife’s sanction or authority. And if that theory is correct, the buildings can not be said to have been erected in pursuance of any contract with the owner of the lots, so as to entitle the petitioner to a lien thereon.
But it is urged that Mrs. Jacobson, by standing by and permitting her husband to hold himself out as the owner of the lots, and by allowing him to enter into a contract with the petitioner for the erection of buildings thereon, is guilty of such fraudulent conduct as should preclude her from disavowing her husband’s acts, or alleging that the lots were not in fact his. It might perhaps be a sufficient answer to this contention to say, that the petitions are not framed on any such theory. They contain no allegations of fraudulent conduct on the part of Mrs. Jacobson, nor do they set out any facts calling for an application of the doctrine of estoppel. They allege an express contract between the petitioner and Mrs. Jacobson, entered into on her behalf by her husband as her agent, and the petitioner must stand or fall by the case thus made by his petitions.
But we are unable to find anything in the conduct of Mrs. Jacobson, as disclosed by the evidence, which calls for an application of the doctrine of estoppel. Long before the date of the contract relied upon, the evidence of her title had been placed on record. The petitioner was thereby charged with constructive notice that she was the owner of the lots, and he was bound by such notice. But without examining the public records, as every person seeking to acquire an interest in lands is required to do, he chose to assume that Mr. Jacobson was the owner, and to base his action upon that assumption.
We fail to find any evidence in the record of any act on the part of Mrs. Jacobson upon which the petitioner had a right to rely as tantamount to a representation on her part that the title was in her husband. If Mr. Jacobson, at the time the contract was executed or afterwards, claimed or held himself out to be the owner, there is not a syllable of evidence tending to show that she was apprised of that fact. It is true, shé stood by and permitted him to put up buildings on her lots, in the sense that she did not positively forbid, or take legal means to prevent, his doing so, but having no knowledge that he was holding himself out to be the owner, her mere non-action, after having given notice of her rights to all the world by placing her title on record, can not have the effect of precluding her from denying that her husband was in fact the owner.
If she had withheld her deed from record, until after the contract had been entered into, as was the case in Schwartz v. Saunders, 46 Ill. 18, thus placing it in the power of her husband to hold himself out to the world as the owner of theproperty; or if shehadfraudulently permittedher husband to represent himself as such owner, as appeared to be the case in Oglesby Coal Co. v. Pasco, 79 Ill. 170, the case would doubtless have been different. But nothing of that kind is shown. If the petitioner has been defrauded, the fraud is one for which she is not responsible, and we find no warrant, either in the pleadings or in the evidence, for holding her estopped to deny that her husband’s representations that he was the owner of the lots, if such were made, were true.
But the decree of the Superior Court, denying the petitioner a lien, may be sustained upon another ground. The fourth section of the statute, in relation to Mechanic’s Liens, as amended by act of March 31, 1887, is as follows :
“Every creditor or contractor who wishes to avail himself of the provisions of this act, shall file with the clerk of the Circuit Court of the county in which the building, erection or other improvement to be charged with the lien is situated, a just and true statement, or account or demand due him, after allowing all credits, setting forth the times when such material was furnished or labor performed, and containing a correct description of the property to be charged with the lien, and verified by an affidavit. Any person having filed a claim for a lien, as provided in this section, may bring a suit at once to enforce the same, by bill or petition, in any court of competent jurisdiction, in the county where the claim for a lien has been filed.”
It was proved at the hearing that the petitioner, on the 13th day of December, 1890, filed in the office of the clerk of the Circuit Court of Cook county, two sworn statements, one in relation to the building erected on lot 3,142, and the other in relation to the building on lot 3,144, such statements being the same as those appended to the amendment to his petitions filed nunc pro tunc by leave of the court, a copy of one of which is set forth at length in the statement preceding this opinion. Those statements make no reference to Fannie Jacobson, but allege that Mr. M. Jacobson is the owner of the premises upon which the lien is claimed, and that there is due the petitioner from M. Jacobson, for work, labor and material furnished, under a contract with him, the gross sum of $1,432.90 on each building. It is, to say the least, very doubtful, whether a statement, in which the owner of the property is not named, or in which no claim is made against the true owner, but in which the indebtedness is claimed to be due from another party, is a sufficient statement to answer the requirements of the foregoing section. Especially is this so in view of the provisions of section 53 of the statute, which requires the clerk of the Circuit Court where the lien. has been filed, to indorse upon the statement the date of filing, and make an abstract thereof in a book kept for that purpose, containing the name of the person filing the lien, the amount of the lien, the date of filing, and the name of the person against whom the lien is filed, together with a description of the property charged with the lien. It is manifest that in this case the statement was not sufficient to enable the clerk to enter in his abstract, the name of Fannie Jacobson as the person against whom the lien was filed.
But a more serious difficulty with the statements is, that they wholly failed to set forth “the times when such material was furnished or labor performed.” That it should set forth these facts seems to be an imperative requirement of the statute. The statements were merely that there was due the sum of $1,432.90 on each building, and that the petitioner held an architect’s certificate, dated October 7, 1890, for $2,565.80, one-half of which was due on each building, and that there was due a further sum of $150 on each building for extra work, for which he had not been able to obtain a certificate. But there is no attempt to give the date or dates of furnishing the material or the performance of the labor, nor is there anything in the statements from which those facts can be ascertained.
A mechanic’s lien does not exist and is not enforceable of common right, but it is purely a statutory lien, and can be maintained only upon those conditions which the statute- imposes. And the statute having required every creditor or contractor who wishes to avail himself of the provisions of the statute to file in a public office a sworn statement of a particular character, that requirement must be at least substantially complied with, and, unless that is done, his lien can not be enforced.
The point, however, is made by counsel for the petitioner, that the provisions of section 4 are intended solely for the benefit and protection of purchasers, incumbrancers and other creditors, and that a failure to file the statement therein provided for does not concern the owner of the premises. There is nothing giving countenance to that view in the language of the section, its provisions being, that every creditor or contractor wishing to avail himself of the provisions of the statute should file the statement. But the conclusion contended for is sought to be based upon section 28, which provides that no creditor shall be allowed to enforce a lien to the prejudice of any other creditor, incumbrancer or purchaser, “ ‘unless a claim for a lien shall have been filed with the clerk of the Circuit Court, as provided in section 4 of this act, within four months after the last payment shall have become due and payable.” And it is provided that suit shall be commenced within two years after the filing of the claim, or the lien shall be vacated. We are unable to give this section the force contended for. It is essentially a statute of limitations, and its effect is to bar relief as against other creditors, incumbrancers and purchasers, unless the claim is filed within four months after the maturity of the last payment. But it has not the effect of dispensing with the filing of the claim, where the lien is sought to be enforced only against the owner of the premises.
We are of the opinion that the decree denying the lien and dismissing the petitions was proper, and the judgment of the Appellate Court affirming the decree will be a®! med-
Judgment affirmed