MacQuiddy v. Rice

DRAPEAU, J.

pro

tem.

The plaintiff constructed a building upon land set apart to the defendant as a probate homestead. Payment for the improvements was not made, and the pending action to enforce a mechanic’s lien was instituted in the superior court. The trial court found a lien in favor of the plaintiff and applied it to a portion of the probate homestead, and the judgment appealed from followed.

The judgment is attacked for the following reasons:

(a) A lien may not in any event be impressed upon a probate homestead.

(b) Assuming a lien may be had upon the property involved, the proof of it is not sufficient, because the probate homestead was set apart to the defendant about a month after work on the improvements was commenced. In other words, the defendant contends that when the work of improvement was

commenced

the land upon which the improvement was made did not belong to her, and that, therefore, no lien could be impressed upon the probate homestead. Section 1185, Code of Civil Procedure, is cited in support of this proposition.

(c) If the probate homestead is foreclosed for the benefit of the lienholder, and title to the probate homestead thereby passes out of the defendant, this will

ipso facto

terminate the probate homestead, and thus there will be nothing for the plaintiff in any event.

In a printed transcript on appeal presented to this court, there were included copies of the pleadings, findings, and judgment, and a very brief recital of evidence denominated “bill of exceptions, as settled by stipulation.”

This evidence may be completely summarized as follows:

1. That the work of improvement was commenced August 20, 1936, and the last labor was performed October 12, 1936.

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