
    Copley & Harlow vs. O’Niel.
    Section 2 of the mechanics’ lien law (laws of 1864, eh. 402,) gives a hen against the owner, to the extent of his interest, upon a house, and upon the land on which it stands, for labor done upon, and materials furnished for, such building, upon compliance with the provisions of that act.
    Unless the person proceeded against is owner, there can be no lien; and if there is no lien there can be no judgment, under the act.
    Thus, where the defendant, who was guardian of his infant daughter, erected a house upon land owned by her ¡ Held that he could not, as such guardian, without authority from a competent court, build a house upon the land of his ward, and charge the expense upon the ward, or create a lien upon the property for labor and materials, in favor of the mechanics employed.
    Although the statute authorizes a guardian to keep up and sustain the houses, grounds and other appurtenances to the lands of his ward, by and with the issues and profits thereof, or with any other moneys of the ward in his hands, this does not iuclvtde the right of rebuilding.
    
      Permission to erect, on tire ward’s land, a building, with the light of removal, can only be obtained from the guardian; and such permission cannot be given by him as guardian, to himself as an individual.
    A guardian having, as such, charge of his ward’s land, his possessioh of it is in his- capacity of guardian, and not otherwise. He cannot, by a contract with himself, create the relation of landlord and tenant, so as to render his occupation that of a tenant at will.
    APPEAL from a judgment, entered upon the report of a referee, in a proceeding to foreclose .a mechanics’ lien.
    In 1867 the defendant, Michael O’lSTeil, contracted with the plaintiffs, who were carpenters engaged in building houses and furnishing materials for building, to build for him a house on premises which he claimed to own, in the town of Pamelia, Jefferson county, and to furnish lumber and other materials therefor. The defendant agreed to pay a part of the amount in cash, on the completion of the house, and to secure the balance by a mortgage upon the house and lot. The plaintiffs accordingly built a frame house for the defendant on the lot in question, furnishing the lumber and materials therefor; which house was completed on the 4th of May, 1868, and a notice of lien was filed May 14, 1868, the plaintiffs claiming and supposing that the defendant was the owner of the house and premises. The labor, lumber and materials used in building such house amounted, on that day, after deducting all set-offs, to $254.25. The defendant, on being required to give a mortgage upon the house and lot to secure that amount, refused to do so. The legal title to the lot, at the time the notice of lien was filed, was in Margaret O’Meil, an infant daughter of the defendant, who had never paid any consideration therefor. At that time the defendant was occupying the house and lot, and his daughter Margaret was living with him and in his family. Mb express agreement for leasing or the payment of rent for the premises existed between the defendant and his daughter. There had previously been a small house upon the lot, which was burned down. The house built by the plaintiffs was put on stones and blocking—a temporary foundation without plastering or mason work—and so remained, at the time of the filing of the lien and commencement of these proceedings.
    The cause was referred to a referee, who made a report adjudging and deciding as matter of law: 1st. That the defendant, on the 14th of May, 1868, was the owner of the house in question. 2d. That the plaintiffs, by filing their notice with the town clerk, &c., acquired a lien upon the said house. 3d. That the plaintiffs were entitled to judgment against the defendant, Michael O’ííeil, for the sum of $254.25, damages, with interest thereon from the 4th day of May, 1868, besides costs. Judgment being perfected, the defendant appealed.
    
      B. Bagley, for the appellant.
    
      Moore f MeOartin, for the respondents.
   By the Qourt, Mullir, J.

Section 2 of the mechanics’ lien law (Laws of 1854, ch. 402,) gives a lien against the owner, to the extent of his interest, upon a house and upon the land on which it stands, for labor done upon, and materials furnished for, such building, upon compliance with the provisions of said act.

Unless the person proceeded against is owner, there can be no lien, and if there is no lien there can be no judgment, under this act. The defendant and his wife had owned the land on which the house was erected. The wife died, and upon her death he became sole owner of the lot. Before the labor was performed, or the materials were furnished, by the plaintiffs, the defendant conveyed said land to his daughter Margaret, who was sole owner, at the time of the erection of the house, and had been, from April, 1867. The bargain for building the house was made in the fall of 1867. It is thus conclusively established that the defendant did not own the land on which the house stood, at the time of the commencement of the proceedings to acquire a lien. Was he, at that time, or at any time, owner of the house ?

The daughter, who owned the land, was, and still is, a minor. The father' was her guardian. She lived with him. The dwelling-house was burned, and he proceeded to erect another. As guardian, he could not, without the authority of a competent court, erect a house on the minor’s land and charge the expense upon the ward. (Hassard v. Rowe, 11 Barb. 22.) In that case the plaintiff was guardian of the defendants, who inherited from their father two lots of land in the city of Hew York, the buildings on' .which had been destroyed by fire. The plaintiff, deeming it for the interest of his wards that new buildings should be erected on the lots, used the insurance money received upon an insurance of the old buildings, and adding to it moneys of his own, erected new buildings. He filed a bill to compel the repayment to him of the moneys so advanced by him. The bill was dismissed, on the ground that the plaintiff could not, without authority' from the court, expend his money in improving the land of the ward, and be reimbursed out of the ward’s estate. If the guardian could not charge the estate of his ward for advances made by himself, it would be difficult to comprehend how he could effect the object by employing another to make such advances.

By 2 Statutes at Large, page 150, section 20, a guardian is authorized to keep up and sustain the houses, grounds and other appurtenances to the lands of his ward, by and with the issues and profits thereof, or with' any other moneys of his ward in his hands. Keeping and sustaining the houses &c. of the ward does not include rebuilding; if it did, the case of Hassard v. Rowe would have been decided the other way. The chancellor held, in Putnam v. Ritchie, (6 Paige, 390,) that a person who, under a misap prehension of his legal rights, had made large and valuable improvements on lands of minors, they (the minors) were entitled to the improvements, but were not bound to pay for them. And he further held that the minors were not chargeable with fraud or'acquiescence, until they became acquainted with their legal rights. In the case cited the plaintiff had taken from the mother of the defendants a release of a lease in fee of the premises in question, of the rent of which the defendants’ father died seised. She supposed the lease was assets, .and that it was for the interest of. the children to be released from the payment of the rent; and after the plaintiff obtained the release, he entered and made the improvements for which he sought compensation. The defendants had recovered the premises in an action of ejectment, and the bill was filed to restrain that suit until the defendants should pay him for his improvements. His bill was dismissed.

In the case before i us, the plaintiffs are charged with notice of Margaret’s title to the premises; at all events, they are chargeable with notice that the defendant had no title to them when the bargain for erecting the house was made, and they have no reason to complain if, with such knowledge, they did the work and furnished the materials sought to be charged as a lien on the house.

The' defendant being guardian, and as such having charge of the ward’s land, his possession of it was in his capacity of guardian, and he could be in possession in no other. He could not, by a contract with himself, create the relation of landlord and tenant, and hence his occupation could not be that of a tenant at will.

It is doubtless true that a guardian would be liable to account to his ward for the use of the ward’s lands, if he occupied them for his own benefit. But such liability is not as tenant, but as a debtor; having omitted to let the premises to others, he must account for what he ought to have received from them.

Permission to erect, on the ward’s land, a building with the right of removal, could only be obtained from the guardian. This again made necessary a contract by the defendant with himself; so that the plaintiffs cannot claim even a license to erect and remove the building that ' is binding on the ward.

When the guardian erects a building, especially a dwelling, on the ward’s land, it must be presumed to be a permanent annexation, because it may be attached to the soil; and this presumption is very much increased when the person erecting the building is the father of the ward. I am unable to discover any ground on which the defendant can be held to be the owner of the house, and not being owner, there can be no lien.

Whether, on the facts proved, the plaintiffs can, in equity, obtain a lien on the house, or house and land, is a question not before us, and upon which I express no opinion. If there is any such relief it is open to the plaintiffs, if the lien sought to be enforced in this proceeding fails.

It is suggested by the plaintiffs’ counsel that the defendant’s counsel has served no exceptions to the findings of the referee, and hence he cannot assail the findings either of fact or law. In this he appears to be mistaken. The case contains exceptions to both. The referee finds the facts as to ownership, precisely as they were proved by the defendant. He had, therefore, no ground for excepting to the facts. The exception to the conclusions of law is “ to all the findings as matter of law.” By the decision of the Court of Appeals, such an exception is too general, unless all the conclusions of law are erroneous. (Magie v. Baker, 14 N. Y. Rep. 435.) His conclusions, are: First. That the defendant was owner. This is, in my opinion, clearly erroneous. The second is, that the plaintiffs, by their notice, obtained a lien on the house. This is erroneous if the defendant was not the owner. The third is, that the plaintiffs were entitled to judgment for their debt and costs. This is also erroneous, as in this proceeding no judgment can be rendered for debt and •costs, unless a lien has been obtained.

[Onondaga General Term,

October 5, 1869.

The exceptions to the conclusions of law, on their face, are sufficient, and théy are before us for review.

The judgment should be reversed, with costs. As a new trial would be no benefit to the plaintiffs, none should be awarded.

Morgan, Bacon, Foster and Mullm, Justices.]  