dissenting.
I dissent.
Whether Miles consented to the work, labor and materials of Harrah being furnished to the Lee “shell” house so as to subject Miles’ interest in the real estate to a mechanic’s lien is a factual issue that has been determined by the trial court in favor of Harrah. I would not disturb that finding on appeal. A mechanic’s lien may not attach to a titleholder’s interest unless materials are furnished at the authority and direction of the titleholder and something more than inactive consent on the part of the owner is necessary in order that a lien may be acquired against the owner. Better Homes Co. v. Hildebrand Hardware Co., (1929) 202 Ind. 6, 171 N.E. 321.
The rule itself is somewhat anomalous. It initially seems to require, as a precondition to the valid attachment of a mechanic’s lien, the express authority and direction of the titleholder, but then modifies that rigidity by permitting consent by the titleholder to obviate the initial requirement. Indeed, in Better Homes itself, the Court found the requisite “active and instrumental” conduct on the part of the titleholder to permit a mechanic’s lien to attach even though the work was not performed at the express direction or authority of the titleholder.
Later cases indicate “active and instrumental” conduct by the titleholder is tantamount to “authority and direction.” Here, Miles’ conduct in anticipating the plumbing would be installed, its knowledge that the contract purchaser might become obligated to materialmen and laborers, its sale of a shell house which without plumbing, heat or electricity would not be habitable, the importance it attached to the house’s completion in order to increase its security, all indicate active and instrumental conduct sufficient to allow the lien to attach. American Islam Society v. Bob Ulrich Decorating, (1956) 126 Ind.App. 266, 132 N.E.2d 620, 622. All of this was found as fact by the trial court and the majority should not re-examine the evidence to conclude otherwise. The finding of the trial court that the plumbing work was done with “full knowledge and consent” of Miles, and that it “impliedly authorized” the contract purchaser to finish construction on the residence, and that Miles “impliedly authorized” and knew there would be materials, supplies and labor performed on the real estate by persons other than the Lees is amply supported by the evidence.
*602Leo Flynn, Miles’ field representative and manager of its property department and the manager of its hard core collection department testified, in part, as follows:
COURT: What exactly did Miles Homes at this time send to the purchaser in the form of materials? The original purchase price — or mortgage note— was $7814. The $7814 — what does that include?
WITNESS: It includes all the rough— for example, your Honor, it includes the 2 X 4’s, 2 X 6’s, 2 X 8’s, 2 X 10’s; the outside wall sheeting, the siding; the roof boards; the shingles; the windows; ten feet of cabinets; the rough structure of the home. It does not include any of the — what is called packages — electric or the plumbing or the heating is not included in that fee, your Honor.
COURT: The plumbing isn’t included?
WITNESS: No, sir, it is not.
COURT: Yet when you instituted this, you took a mortgage and a note, am I correct?
WITNESS: Yes, sir.
COURT: Was it anticipated that the person buying from you would buy from other people other materials that were not sent as a part of the package?
WITNESS: It is the discretion of the buyer, your Honor, that he could buy materials from Miles Homes if he so desired.
COURT: All right. But that’s in his discretion?
WITNESS: Yes, sir.
COURT: So that you could contemplate that a buyer of a Miles home might become obligated to electricians, possibly, or plumbers, or lumber companies?
WITNESS: I don’t know how to answer the question, your Honor. The material is furnished by Miles under an initial contract for the shelling-in of the home, as it’s called. The extra material can be purchased from Miles and installed by the customer at his own pace or his own will or his own discretion.
COURT: All right. But you didn’t consider it a complete wasting of the mortgage property if they ordered from an outside source — such as the plumbing— did you?
WITNESS: I don’t think I understand the question, your Honor.
COURT: All right. Did you consider it a default of the mortgage note and contract with relation to the property if your buyer purchased the things that he needed to finish the house?
WITNESS: No, sir. He could buy whatever he wanted wherever he wanted to buy it at his own discretion.
COURT: Well, he had to, didn’t he, to complete the house?
WITNESS: He could have ordered from Miles, your Honor.
COURT: But he had to get other things to complete the house?
WITNESS: Yes, sir.
COURT: And it was his discretion whether he bought it from you or bought it from Powell-Stephenson Lumber Company, which is a local lumber company?
WITNESS: That’s right, sir.
COURT: Or from Harrah Plumbing?
WITNESS: That is correct, your Honor.
COURT: You anticipate he had to have plumbing in there?
WITNESS: Yes, sir.
COURT: And he could either do it himself or he could hire it done?
WITNESS: The understanding was that the customer would do it on his own, sir.
COURT: Well, by “his own” you mean hire it done or do it himself?
WITNESS: Well, I guess what I’m trying to say, your Honor, is that he had the right to do the work however he deemed necessary.
COURT: Okay. But it was important to Miles Homes that the home be completed?
WITNESS: Yes, sir.
COURT: That increased your security, did it not?
*603WITNESS: Yes, sir.
COURT: To sit without plumbing certainly wouldn’t make your security or your salability or resalability of your house that is mortgaged any better?
WITNESS: No, sir.
COURT: So then in the Lee’s case here, did you know he was putting plumbing in that house?
WITNESS: I personally did not have knowledge that he was- — quote, unquote — putting plumbing in the house, no, sir, but as a normal situation you would anticipate that he would be.
It is evident from the testimony that
(1) Miles anticipated that other materials would be bought by the Lees;
(2) A buyer of a Miles home might become obligated to electricians, plumbers or lumber companies;
(3) Miles did not consider it a default of its mortgage note and contract if the buyer bought things necessary to finish the house;
(4) The buyer would install plumbing;
(5) It was important to Miles that the house be completed in order to increase its security;
(6) To sit without plumbing would not make their security or the salability of the home any better;
(7) In a normal situation Miles anticipated that plumbing would be installed.
The trial court’s factual determination is well taken and the legal conclusion that Miles gave authority and direction follows.
I would affirm the trial court.