
    BAUER v LONG.
    1. Mechanics’ Liens — Property Subject — Estates by Entire-ties.
    A mechanics’ lien cannot be created against land held by husband and wife as tenants by the entireties by services performed pursuant to a contract in which the wife does not join. (Sections 10710,10711, 3 Comp. Laws.)
    2. Same — Lien on Building Separate prom Land.
    Section 10712, 3 Comp Laws, providing for a lien on a building erected upon lands of which the contracting owner has not title, does not apply to a building erected upon land owned by the owner and his wife as tenants by the entirety.
    3. Same — Husband’s Interest
    A husband owning land with his wife in entirety has no interest therein, or right of possession during his lifetime, to which a lien can attach under any contract not signed by the wife.
    
      Appeal from Jackson; Parkinson, J.
    Submitted January 10, 1907.
    (Docket No. 7.)
    Decided March 5, 1907.
    Bill by Christian M. Bauer against William S. Long, Ella Long, and the Laboring Men’s Building & Loan Association to establish and foreclose a mechanic’s lien. From an order overruling a demurrer to the bill, defendants appeal.
    Reversed, and bill dismissed.
    This is a suit in equity to establish and foreclose a mechanic’s lien. The bill alleges that complainant made a contract with defendant William S. Long to erect a dwelling house upon the land owned by the defendants William S. and Ella Long, who are husband and wife, as tenants by the entirety; that the contract price was $2,953, that the contract has been performed, and that $296.48 remains unpaid. The bill also sets forth that he had taken the proceedings required by the statute to establish the lien. The bill prays for a lien upon the premises for the amount due under the contract. To this bill the defendants demurred, because (1) the bill shows that the title to the land was held by the defendants Long as tenants by the entirety; (2) that the defendant Ella did not join in the contract; and (3) that the property is a homestead, occupied and used as such. The court overruled the demurrer, and the case is before us on appeal.
    
      John F. Henigan, for complainant.
    
      George H. Curtis, for defendants.
   Grant, J.

(after stating the facts). The main question presented is, Does the statute provide for a mechanic’s lien upon land owned by the husband and wife as tenants by the entirety under a contract signed only by the husband ? Section 10710, 3 Comp. Laws, being section 1 of the mechanic’s lien law, provides for mechanics’ liens. It contemplates a lien where the land is owned by the party for whom the work is done or the materials are furnished. Section 10711, 3 Comp. Laws, being section 2 of the mechanic’s lien law, provides for such a lien upon land owned jointly by husband and wife, provided both sign the contract. Mechanics’ liens are pure creatures of the statute. Courts cannot extend them to cover cases not included in the statute. The bill shows that complainant knew how the title was held; that the building was to be so constructed that it became a part of the realty, and could not be removed after its erection, without injury to the freehold, and that he has so constructed it. His bill is framed upon that theory, for it does not pray for .a lien upon the building separate and apart from the land on which it is situated. This court has repeatedly held that one tenant by the entirety has no interest separable from that of the other. He has nothing to convey or mortgage or to which he can attach a lien. Michigan Beef & Provision Co. v. Coll, 116 Mich. 261, and authorities there cited.

In view of this condition of the law, and to protect the rights of each, the legislature enacted that this lien might attach if the lienor secured the written contract of the husband and wife. To hold that either might contract for a lien without the assent of the other would be clear judicial legislation. The complainant seems to concede that he has no lien upon the land, but claims the right to a lien upon the dwelling house, and to sell and remove it under his lien proceeding. This case does not fall within' section 10712, 3 Comp. Laws, providing for a lien upon the building if the building is upon lands “to which the person contracting for such erection has no legal title,” or within the decision of Holliday v. Mathewson, 146 Mich. 336. In that case the house was erected upon land to which the defendants at the time of its erection held no title. It is conceded that this question is before the court for the first time. We are cited to no authorities in point. My examination has resulted in finding one case, which holds that the lien attaches to the life estate of the husband. Washburn v. Burns, 34 N. J. Law, 18. The court there held that the husband during his life was entitled to the possession and use of the lands, and that he could attach a lien to his life interest, but no other. That case is inconsistent with the holdings of this court. •

The decree must be reversed, and the bill dismissed, with the costs of both courts.

McAlvay, C. J., and Blair, Montgomery, and Ostrander, JJ., concurred.  