
    Decided February 28, 1898;
    rehearing denied.
    HUNTER v. CORDON.
    [52 Pac. 182.]
    Mechanic’s Lien — Pleading Knowledge of Owner.— Where it is sought to foreclose a lien for the cost of repairs made for a stranger to the title, the complaint must'allege that the owner knew of such repairs being made: Allen v. Rowe, 19 Or. 188, and Cross v. Tscharnig, 27 Or. 49, cited.
    From Douglas: J. C. Fullerton, Judge.
    Suit by John Hunter against Caroline and Jake, Cordon to foreclose ah alleged lien for materials sold to be used in repairing a building belonging to the defendant Caroline. Plaintiff appeals from a decree against him.
    Affirmed.
    
      For appellant there was a brief oyer the names of Wm, R. Willis and Andrew M. Crawford, with an oral argument by Mr. Willis.
    
    For respondents there was a brief over the names of Brown and Tustin, with an oral argument, by Mr. Fred Page-Tustin.
    
   Mr. Chief Justice Moore

delivered the opinion.

This is a suit to- foreclose a mechanic’s lien for material furnished to be used in repairing a building. The answer, after denying the material allegations of the complaint, avers that said material was supplied under an agreement that the value thereof would be paid in labor to be performed by the defendant, Jake Cordon, who at all times had been ready, able and willing to keep his part of said contract, but that plaintiff, though requested to furnish him employment, had neglected to do so. The reply having put in issue the allegations of new matter contained in the answer, and a trial being had thereon, the court was unable to find from the evidence that any contract had ever been entered into by which the value of the materials furnished was to be paid in labor, but found that the defendant Caroline Cordon, who is the wife of Jake Cordon, was the owner of the real estate upon which the improvement was made, that she did not enter into any contract with plaintiff for such improvement, and that her property was not subject to a lien for material supplied to her husband, and dismissed the suit, from which decree plaintiff appeals.

Counsel for plaintiff, relying on the provisions of section 3672, Hill’s Ann. Laws, for a reversal of the decree, contend that, inasmuch as Caroline Cordon was living in the building at the time it was repaired, and had knowledge of the improvement being made, and did not post a notice in writing in any conspicuous place upon the land or building, to the effect that she would not be responsible for the value of the material used in making the repairs, the lien attached to the premises, and the court erred in dismissing the suit. Section 3672, Hill’s Ann. Laws, is identical with section 1192 of the Code of Civil Procedure of California, and the supreme court of that state, interpreting its statute, held that a complaint which sought to charge the real property of the owner with improvements made thereon by a tenant, and averred “that such building was constructed upon the said land with the knowledge of each of said defendants,” was not defective because it failed to allege that the defendants did not give notice that they would not be responsible for the material furnished by plaintiff. In Jewell v. McKay, 82 Cal. 144 (23 Pac. 139), it was held that it was unnecessary to state in the notice of lien that the owner of the land sought to be charged with the cost of improvements made thereon by another had knowledge that the work was being done, but that it was sufficient if such knowledge was alleged In the pleadings and found by the court.

In Allen v. Rowe, 19 Or. 188 (23 Pac. 901), Mr. Justice Strahan, construing section 3672 of our statute, says: “In case some person other than the owner employs a materialman or laborer to furnish material or to do labor upon such land, something more is necessary to reach the title of such owner than to insert his name in the notice filed with the county clerk and to say that he is such owner or reputed owner.” And further in the opinion the learned justice says: Under this section, when the owner of the land did not employ the laborer or materialman to furnish the materials, but the same was done by some other person, it must have been done with the knowledge of the owner or person having or claiming an interest in the land. In such case knowledge of the owner or person having or claiming an interest must exist and be shown as a fact. When this fact does appear the lien reaches and binds his interest, unless he relieved himself in the manner provided in the section by posting the notice within three days after he obtained such knowledge. I have looked carefully through the pleadings and evidence to see if the fact in any manner appeared, but am unable to discover it.” The language here quoted seems to leave the inference that if the knowledge of the owner was established by evidence, it is sufficient without any allegation to that effect; but if this language was so intended, we cannot concur in the conclusion reached, for when another has made improvements to the owner’s land the latter’s interest therein can be reached only in consequence of his knowledge and failure to give the required notice, and when he remains silent under such circumstances the statute permits the lienor to invoke the doctrine of an estoppel in pais, and the burden of proof being upon him to establish the particular fact which confers the right, he must, as a condition precedent to its exercise, allege the owner’s knowledge of the construction, alteration or repair of a building upon his land by another before he is entitled to the relief which the statute affords: Pilz v. Killingsworth, 20 Or. 432 (26 Pac. 305); Cross v. Tscharnig, 27 Or. 49 (39 Pac. 540). The complaint, having omitted this material allegation, fails to state facts sufficient to constitute a cause of suit, and hence the decree is affirmed.

Affirmed.  