
    R. Hill Edwards, and Fanny his wife, v. Edward Edwards, and Pringle & Heiskill.
    1. A judgment creditor, who seeks by action to subject to the payment of his judgment a claim for purchase money due to the judgment debtor as vendor, is entitled to the enforcement of the vendor’s lien, to the same extent it might have been enforced if the action had been by the vendor against the vendee.
    2. An averment in the petition, in such case, that the vendee and Tier husband are indebted to the vendor for the purchase money, is not such an admission that the vendor’s lien had been waived, as will preclude the court from finding, on an issue denying that the husband was so indebted, that the lien of the vendor had not been waived.
    3. An answer to such petition by the vendee, averring that the purchase money so sought to be subjected to the payment of the judgment, had been fully paid to the vendor, must be taken as true, unless controverted by reply.
    4. S. and F., married women and owners in severalty of adjoining lots, the same being their separate property, did, together with their respective husbands, contract with E. for the erection of a house on the line of their lots, so as to furnish each a homestead upon her own lot. E. having erected the house, verified an account of the items of labor and materials furnished under the contract, and had the same duly recorded, as required by the statute in relation to mechanics’ liens (S. & O. 833), and afterward prosecuted his action against all the contracting parties, to subject the property improved to the satisfaction of his claim. Held, 1. That a lien, under the statute, attached to each of said lots and the portion of the house erected thereon, to secure the payment of such portion of the labor and materials as was expended in the improvement thereof; 2. That in such action, it. was proper to take an account of the cost and expense of the whole improvement, and to apportion the same between the lots according to the value of the labor and materials expended on each; 3. That, upon failure of payment it was properly decreed that each of the lots should be sold to satisfy the lien so found against it.
    
      S. In an action against a married woman and others, where her husband is incompetent to testify for or against her, he is nevertheless a competent witness for a co-defendant, if the case be one in which separate judgments may be rendered. The rule contained in the second proposition of the syllabus in Hubbell v. Hubbell, 22 Ohio St. 208, followed and applied.
    Error to the District Court of Clark county.
    Pringle & Heiskill, judgment creditors, brought an action, in the nature of a creditor’s bill, against the judgment debtor, James P. Edwards, and others, in the Court of Common Pleas of Clark county.
    Susan Edwards, wife of the judgment debtor, was made a defendant, against whom it was alleged that certain real estate was held by her in fraud of the rights of her husband’s creditors, etc. Susan filed her answer, and the plaintiffs replied thereto, whereby certain issues of fact were joined between them.
    Eanny C. Edwards, with her husband, R. Hill Edwards, was also made a defendant; against whom it was alleged that there was due from R. Hill Edwards and said- Eanny C. to said judgment debtor, a balance of purchase money on account of the sale of certain real estate conveyed by said James P. to said Eanny C., which ought to be applied to payment of plaintiff’s judgment. By their answer, R. Hill Edwards and Eanny C. Edwards denied their indebtedness to James P., and averred that the purchase money for said premises had been fully paid, and that the premises were owned by Eanny C., and were occupied as a homestead. To this answer there was no reply.
    Edward Edwards was also.made a defendant, who, by answer and cross-petition, sought to enforce a mechanic’s lien against the real estate described in the petition. It appears from the cross-petition that the real estate owned by Susan and Eanny respectively were adjoining tracts, of ■small area, and suitable for homestead buildings. That previous to the commencement of the action by Pringle & Heiskill, Edward Edwards, under a. contract with Susan and Eanny, and their respective husbands, had constructed a dwelling-house (and furnished the materials therefor) on the line between these tracts, so that a domicile was provided for each of the owners upon her separate land. That-afterward, on the 26th of October, 1867, and within four months from the completion of the work, he made an account, etc., and left the same for record with the recorder of the county, etc., as provided by the statute to create a lien in favor of mechanics, etc. The form of the account was against James P. Edwards and Susan his wife, and R» Hill Edwards and Fanny his wife, jointly. The balance-claimed to be due was $1,171.01. The real estate described in the affidavit to the account and in the record of the lien embraced both tracts, but described them separately as the property of Susan and Fanny respectively.
    The cross-petition also avers that the work was done- and material furnished in the improvement and for the benefit of the real estate of Susan and Fanny; and that they agreed and intended to charge their real estate with the costs and expenses of said labor and materials. The prayer of the cross-petition was for the enforcement of the lien and. for general relief.
    Pringle & Heiskill replied to the answer and cross-petition-of Edward Edwards, by denying the validity of his lienr, and also by denying that there was due to said Edward, on-account of his work and materials, a sum exceeding $300.
    Susan Edwards, as well as James P. and R. Hill Edwards, made no answer to the cross-petition of Edward Edwards.
    Fanny C., however, filed her answer, wherein she denies :. 1. That she is indebted, in conjunction with James and Susan and R. Hill Edwards, in any sum .whatever to-Edward; 2. That the work and material were of the value set forth in the cross-petition; 3. That the account was filed within four months next after the completion of the work; 4. That she intended to charge her real estate with tbe costs and expenses of the labor and materials as ■averred; 5. That said Edward has alien on said premises to ■secure any claim against her; and lastly, for further answer, she avers that the work and materials mentioned in the cross-petition of Edward were furnished under a special contract, to wit: That the dwelling-house so to be erected ■on both tracts of land, should be constructed for $1,600, of which sum she was to pay $1,000, and no more; that said Edward agreed to receive from her $1,000 in full of her •share of the cost of building, and that she had fully paid ¡said $1,000 to him before the time the work was done and materials funished.
    Edward Edwards replied to this answer, by denying the special contract set up in the answer and the payment by Eanny of $1,000, or any other sum, in full of her share of the cost and expenses of said dwelling-house.
    On the trial of tbe case in the District Court, where the ■cause had been taken by appeal from the Common Pleas, Edward Edwards, to maintain the issues on his part, called Susan Edwards as a witness, who testified to the various matters tending to sustain the mechanic’s lien set forth in bis answer and cross-petition, as against the several parties contesting said lien, and also as to the issues between her .and the plaintiffs, which said witness was cross-examined by the plaintiffs, but not by the defendant, Eanny C. Edwards; and after said defendant, Edward Edwards, had rested his case, the said defendant, Eanny C. Edwards, upon ■her part, called James P. Edwards, husband of said Susan Edwards, and offered him as a witness on her behalf, and by him proposed to prove that the matters and things set forth in her said answer to the answer and cross-petition of said defendant, Edward Edwards, were each and all of them true, as in her said answer set forth, and also to prove that matters and things material to the issue, which had been ■testified to by said defendant, Edward Edwards, in his ex■amination-in-chief, were not true; to which said defendant, Edward Edwards, by his counsel, objected, and further objected that said James P. Edwards was not a competent witness for said Fanny O. Edwards, which said objections were-by the court sustained, and said witness was not permitted to testify as proposed, and the evidence so offered was by the court ruled out and not permitted to be given. To which rulings and holdings of the court, the said defendant, Fanny C. Edwards, by her counsel, excepted. And the court below found the title in Susan to be void as against the creditors of her husband, and subjected the property to the payment of the plaintiff’s judgment. It also found that Fanny was indebted to said James P. Edwards in the sum of $230.25, for which he held a subsisting lien as vendor upon the tract of land so as aforesaid owned by her, and decreed the same to the plaintiffs, and declared the same to be the first lien on her property. The court also found in favor of Edward Edwards a valid lien as a mechanic, against the real estate held as aforesaid by Susan, to the amount of $163, and that the same was the first lien on her property, and also a valid lien as a mechanic, against the real estate of Fanny, to the amount of $718.75, which was the second lien thereon ; and, in default of payment, ordered the sale of the several tracts for the satisfaction of the several liens thereon.
    Fanny C. Edwards, with her husband, prosecutes this petition in error to reverse the decree in favor of the-plaintiffs below for $230.25, charged as the first lien upon her property, and also the decree in favor of Edward Edwards for $718.75, which was charged as the second lien-upon her said property, and assigns for error the following t
    
    1. That the court erred in rejecting the evidence of James P. Edwards, as will appear by the bill of exceptions on< file.
    2. That the court erred in overruling the motion made-by Fanny C. Edwards for a new trial.
    3. That the court erred in finding that James P. Edwards held a valid lien, as vendor, for the sum of $230.25, which the said Pringle & Heiskill had the right to subject to-the payment and satisfaction of the amount found due-them, and in decreeing the same to be a lien on her lands,, and in ordering the said lands to be sold in default of payment of said sum.
    4. That the said court erred in finding and ordering that more than one-half of the amount of the pretended lien of said defendant, Edward Edwards, should be paid out of the said lands of Eanny C. Edwards.
    5. That the said court erred in dividing the amount of the claim of said Edward Edwards, and in decreeing the payment of $718.75 of the same by Eanny C. Edwards, and that said sum was a separate lien upon her said lands, and in ordering the same to be sold to pay the same.
    6. That the court erred in finding a mechanic’s lien in favor of Edward Edwards and against the premises of Eanny C. Edwards. The said plaintiffs therefore pray that the said judgment, orders, and decrees may be reversed, and the said plaintiff, Fanny C. Edwards, restored to all things she has lost by reason thereof.
    
      J. Warren Eeifer, for plaintiff's in error :
    I. The pleadings make no issues common to Eanny C. Edwards and James P. Edwards and his wife Susan; and, although all parties in the suit, the testimony of James P. for Eanny O. could not affect, or be for or against any interest of his wife, Susan. • It follows, that section 314 of the code (as amended 1866) does not apply. Much less does the same section as amended in 1870.
    Edward Edwards was entitled to a decree against J ames P. and Susan Edwards by default. The mei’e fact that they were parties to the suit could not affect the matter of their competency to testify for a co-defendant. Bell v. Wilson, 17 Ohio St. 640.
    II. The plaintiffs, Pringle & Heiskill, in their petition, do not make a case for a vendor’s lien, and none is there claimed to exist; and the averments and prayer of the petition conclusively show that the relief sought was by virtue of the provisions of section 458 of the code, in aid of execution.
    The requisite allegations in a petition must be made he-fore a court of equity will grant relief, etc. White v. Denman, 1 Ohio St. 110.
    The fact, which appears by the petition, that R. Hill Edwards became individually liable for the payment, with Fanny C. Edwards, of the purchase money, destroys the vendor’s lien, or rather prevents it from attaching. Williams v. Roberts, 5 Ohio, 35-40; Mayham v. Coombs, 14 Ohio, 428; Follet v. Reese, 20 Ohio, 546; Gilman v. Brown, 1 Mason, 191-212; Hare v. Van Deusen, 32 Barb. 92.
    If even a vendor’s lien could have attached in favor of James P. Edwards, at his suit against Fanny C. Edwards, it is not such a lien as a court of equity could enforce at the suit of creditors, and for their benefit. If the vendor dues not himself set up the vendor’s lien, it must be deemed to be waived. The lien is personal, and can not be assigned. That which is not assignable or transferable can not be reached by judgment creditors through the intervention of a court of equity. If it were otherwise, a court of equity would be able to apply to the payment of a debt of a judgment creditor that which the judgment debtor could not himself voluntarily transfer to him to be applied. Brush v. Kinsley, 14 Ohio, 20; Jackman v. Halleck, 1 Ohio, 318-320; Brown v. Gilman, 4 Wheat. 255; Brown v. Gilman, 4 Pet. Cond. 455, 457, and notes; 2 Sugden on Vendors (9th London ed.), 74-80.
    The answer and cross-petition of Edward Edwards shows there was no valid contract with Fanny C. Edwards for the improvement of her own premises.
    Fanny O. Edwards, being a married woman, could not make a valid contract, jointly with others,- for the improvement of her lands, in conjunction with the improvement of lands of other parties.
    A. mechanic’s lien, in Ohio, arises only upon a valid contract with the owner of the real estate. S. & C. 833, secs. 1, 7; Houck on Liens, sec. 132; Choteau v. Thompson, 2 Ohio St. 114.
    The contract set up is clearly not one which would bind a married woman.
    
      A mechanic’s lien can not be created, in Ohio, upon the Teal estate of a married woman, for work, etc., under a contract with her husband. Spinning v. Blackburn, 13 Ohio St. 131.
    Edward Edwards did not rely alone upon a lien to secure the payment of his claim upon Eanny C. Edwards.
    A mechanic’s lien, like a vendor’s lien, never attaches, or is waived, where individual or other security is taken for the payment of the debt. Houck on Mechanic’s Lien, secs. 200, 202, and authorities cited in note; Kinzey v. Thomas, 28 Ill. 505.
    
      Spence § Arthur and Goode, Bowman § Scott, for defendants in error:
    Edward Edwards had a subsisting lien, under the mechanic lien laws of Ohio, on each of the lots.
    If Eanny and Susan had made separate contracts for a house on their respective lots, it will be -admitted at once that a mechanic’s lien would have attached.. That their respective husbands joined with them, could not affect the validity of the lien. Machir v. Burroughs, 14 Ohio St. 519.
    The contract could, in no sense, be said to be joint in its terms. It is the interest of the parties to it that determines its character. If the interests are joiut, the contract will be joint. If the interests are several, the contract will be several. Gould’s Pl., ch. 4, sec. 59; James v. Emery, 5 Price, 533; 1 Parsons on Contracts, 18-20; 2 Burr. 1190.
    There is no distinction in the law between a joint and several contract, so far as the capacity of the parties is concerned. If the subject of the agreement be one about which, a married woman may bind herself, she may do so alone or with others. But a personal judgment was not asked against Eanny and Susan. No question was made, and none could be made under the pleadings, or in the light of the testimony offered, as to the liability of either Eanny or Susan for the whole amount of the debt. In the absence of any agreement as to how much each should pay, the statute fixes their respective liabilities. Each was bound to pay for her part of the building, estimated on the basis-of the contract price. That, where individual or other security is taken by the mechanic for his labor and materials, his right to a lien is destroyed, is probably a sound legal proposition. But in this case no security of any kind was taken, and no such thing was proposed or thought of by any of the parties to the transaction.
    Although Edward Edwards’ lien was created by statute,, it was not more limited in its operation than a lien of any' ■other kind, and in this proceeding should be treated precisely as a mortgage or any other valid incumbrance. Upon the facts stated in the pleadings and proved on the trial, it was a case eminently proper for the marshaling of liens. The rights of the several parties could have been worked out in no other way. 2 Story’s Eq., sec. 1233a, et seq.
    But the case made by Edward Edwards in his cross-petition, and at the trial, was not simply one for the enforcement of a mechanic’s lien. Independently of the statute, and if he had never taken the steps required t»' perfect a mechanic’s lien, he would have had a perfectly good claim against the property of these two married women for the value of his labor and materials; and in equity the court would have enforced its payment as a charge upon their separate estates. Phillips v. Graves, 20 Ohio St. 371.
    Section 314 of the code as amended in 1866, and no other,, governs the admission of testimony in this case, so far as the witness, James P., was concerned. Section 2 of the act of Api’il 8, 1856, as amended February 19,1866 (S. & S. 1),. prohibits the application of section 314, as amended in 1870.
    “ In order to justify the reversal of a judgment or decree-upon error, the record must show affirmatively, not only that error intervened, but that it was to the prejudice of the party seeking to take advantage of it.” Ohio Life Ins. and Trust Co. v. Goodin, 10 Ohio St. 557.
    “To justify the reversal of a judgment, where the error complained of is the rejection of evidence, its materiality must affirmatively appear upon the face of the record.” Courtright v. Staggers, 15 Ohio St. 511; Stull v. Wilcox, 2 Ohio St. 569.
    The record in this case not showing what James P. Edwards was offered to prove, or that his testimony would have been material, or that Fanny was prejudiced by its rejection, the decree of the District Court should not. be reversed on that account.
   McIlvaine, J.

I. Upon the pleadings and record before us, we do not see how the decree in favor of Pringle & Heiskill against Fanny C. Edwards can be sustained. Tier answer to the petition averring the payment of the specific indebtedness, sought to be appropriated, was uncontroverted by the plaintiff’. There was no issue joined upon this plea of payment, and we can not assume that the finding and order of the-court were sustained by the evidence,, but must assume that there was no testimony offered on the question of payment. For the purposes of this case, the answer must be taken as true, and the decree set aside.

As the case must be remanded for further proceedings, we deem it proper to express our opinion on two or three other matters connected with this branch of the case, and which are assigned for error.

It is claimed that Pringle & Heiskill could not enforce-the lien which their judgment debtor held, as vendor, to-secure the purchase money due to him from Fanny C. Edwards.

That a vendor’s lien can be enforced only by the vendor,, may be true as a general rule; but undoubtedly it is subject to exceptions. On the death of the vendor, such lien may be enforced by his personal representatives. Story’s Eq.. Jur., secs. 789,1227, and cases there cited. -Such lien may also be enforced by creditors and legatees in marshaling the assets of the vendee. 4 Russ. 336; 9 Ves. Jr. 209; 15, Ves. 339; 6 Johns. Ch. 402. Ve can see no reason why the same may not be done by a judgment creditor of the-vendor, in an action to subject purchase money due the latter to the payment of the judgment. The equitable right of the judgment creditor is to have the claim due from the purchaser to his debtor subjected to the payment of his judgment. An essential element in the value of such claim is the security held for its payment. To deny the judgment creditor such security would be inequitable to him, .and to the vendor, while the granting of it would do injustice to no one. In' such action, the vendor and vendee, both being parties, it appears to us that the lien of the vendor should be enforced for the benefit of the judgment •creditor to the same extent that it would be enforced if the .action had been brought by the vendor himself against the vendee for the enforcement of the lien.

It is also claimed that Pringle & Heiskill, under the averments in their petition, wrere not entitled to the benefit of the vendor’s lien. It is true they did not aver, in so many words, the existence of the vendor’s lien, nor did they specifically pray for its enforcement. They did, however, aver all the facts essential to the existence of the lien, and prayed for general relief. "We think, therefore, that' the petition was sufficient to warrant the decree.

It is also claimed that the averment in the petition, ■that the purchase money was due from the vendee and her husband, shows that the vendor’s lien had been waived. This claim is based on the legal presumption of« waiver arising from the fact that other security was taken for the purchase money. The record shows that both Fanny and her husband denied his liability, and the decree does not find him to have been liable. If the husband did not, in fact, assume the payment of the purchase, and the sale was not, in fact, made on his credit, the vendor’s lien attached; and we think the court was not precluded from so finding, notwithstanding the allegation in the petition. Indeed, it is very doubtful whether a waiver of the vendor’s lien can be inferred at all, from the mere fact that a husband binds himself, as well as the wife, for the payment of purchase money of property conveyed to the wife.

II. It is further claimed by plaintiffs in error, that “the court erred in finding a mechanic’s lien in favor of Edward and against the premises of Eanny C. Edwards;” and in finding and ordering that more than one-half the amount of the pretended lien . . should be paid out of the lands of Eanny C. Edwai’ds;” and “ in dividing, the amount of the claim of said Edward Edwards, and in-, decreeing the payment of $718.75 of the same by Eanny C. Edwards, and that said sum was a separate lien upon her lands; and in ordering the same to be sold in payment, of the same.”

The statute in relation to liens in favor of mechanics-(S. & O. 838) provides, that any person who shall perform labor or furnish materials for the erection of any house, etc.,, by virtue of a contract or agreement with the owner thereof, shall have a lien, to secure the payment of the same, upon such house and the lot of land upon which the-same shall stand.

The house erected by Edward stood .partly on land, owned by Susan and partly on land owned by Eanny; and the labor was performed and the materials furnished under a verbal contract with them and their respective husbands.

If Susan and Eanny had been legally competent to bind themselves personally, and to bind their estates for the-performance of this contract to the full extent of its-terms, there can be no doubt that they and each of them, as well as their husbands, would have been estopped, as against Edward, from denying such ownership as was necessary to sustain the mechanic’s lien. But being married women, it may be conceded that they were incompetent to bind themselves or to bind their respective estates beyond the cost and expense of their improvement. To’ this extent, however, each was capable of making such Contract with Edward as would bind her property under the mechanic’s lien law. Machir v. Burroughs, 14 Ohio St. 519. And to the same extent, each was capable of binding herself personally. S. & O. 391, act of March 23, 1866.

Notwithstanding the contract relied on to support the - lien was joint in form and incapable of being enforced to - the full extent and meaning of its terms, by reason of the want of power in the contracting parties to bind themselves or their respective estates beyond the cost and expense of improving them respectively, still, we think, in equity, it should be regarded as the contract of each, and a charge against the separate estate of each, to the full extent that such separate property was benefited by the labor and materials thus procured for its improvement.

The fact that the husbands of these owners joined with them in the contract for the improvement of their several estates can make no difference, especially as there is no intimation that the work was performed or the materials furnished on the credit of the husbands.

Under the statute above referred to (S. & C. 833), the lien in favor of the mechanic is secured by filing with the recorder, to be recorded, etc., a verified account of the items of labor and materials, etc. A single account and record were made in this case, and the balance, for which the lien was sought to be enforced, was a gross sum, claimed to be due on the contract.

There being, in fact, but one contract, and but one house erected (erected, however, in such a manner as to furnish a separate domicile to each of the owners, and situated upon her separate estate), we think there'was a sufficient compliance with the statute in this respect to secure a lien against each of the lots for the value of the labor and materials expended for its improvement.' This statute being remedial in its nature, should be reasonably construed, and with a view to the accomplishment of the ends for which it was enacted.

If the foregoing views be correct, it follows that there was no error in dividing .the claim due the mechanic, and apportioning the same among the owners according to the amount of benefit, which accrued to each estate, or in ordering the sale of such estate to satisfy the amount of the lien thus found to exist thereon.

III. We think the court below erred, in rejecting the testimony of James P. Edwards, as offered by Eanny, and in holding that he was incompetent to testify as a witness for her. These rulings are sought to be j ustified on the ground that Susan, the wife of James P., who was also a party in the action, had been previously called as a witness by Edward Edwards, and had testified in the case. And it is especially claimed, under section 314 of the code, as amended February 16, 1866 (S. & S. 558), that James P. could not have testified in relation to the validity of Edward’s lien without testifying for or against his wife, against whose property, under the same state of facts, the lien was sought to be enforced in the action. Section 314, referred to, provides that, “ The following persons shall be incompetent to testify. ... 3. Husband and wife for ■or against each other, or concerning any communication made by one to the other during coverture, whether called as a witness while that relation subsists or afterward, except in actions where the wife, were she a feme sole, would be plaintiff or defendant, in which action the wife may testify. Either the husband or wife may testify, but not both.”

The error in rejecting James P. as a witness for Fanny appears in several ways: 1. He was offered to prove payment by Fanny to Edward, to the full extent that the improvement had been made for the benefit of her estate. Susan, the wife of witness, had no interest in this issue, and hence the testimony of- her husband in relation to this question could not have affected her rights in the action. 2. We have already shown that the action was one in which it was proper for the court to render separate judgments, as against Susan and Fanny, upon the claim of Edward — in fact, that a joint judgment against them was inadmissible; hence, notwithstanding Edward’s right to separate judgments, as against Susan and Fanny depended upon- the same general state of facts, James P. was a competent witness for Fanny, upon the whole issue, under the authority of Hubbell v. Hubbell, 22 Ohio St. 208. The rule of that case would have been of easy application on the trial of this case below, where the party against whom the witness was incompetent was either in default or indifferent as to every question in the issues joined with the plaintiff in error.

Judgments reversed as prayed for by plaintiff's in error,, and cause remanded to the District Court for further proceedings.

Day, C. J., White and Rex, JJ., concurring. Welch, J.y not sitting.  