Zachary v. . Perry , 130 N.C. 289 ( 1902 )

CLARK, J., dissenting. The attempt to file (291) notice of a lien by Zachary Zachary against the property of thefeme defendant must fail of its purpose. Only Robinson, the original contractor, could file the notice of lien, and then only after he had completed the work and completed his contract, and within the time provided by law. But he abandoned his contract, and therefore himself could file no lien. The acceptance by the defendants of the draft drawn by Zachary Zachary is as follows:

$84.98. MOUNT OLIVE, N.C. 16 November, 1898.

Mr. D. Perry and wife, K. D. Perry, will please pay to Zachary Zachary the sum of $84.98, and charge the same to my account as a payment on the contract price for building a dwelling-house about two miles north of the town of Mount Olive, N.C.

Probate of the paper and acceptance was had as to both, and the private examination of the feme defendant was taken. The paper (draft) contains no express charge upon the land mentioned in it, nor can it be considered as a lien by way of mortgage, and is therefore not effectual to bind the real estate of the feme defendant. Farthing v. Shields, 106 N.C. 289; B. andL. Assn. v. Black, 119 N.C. 323.

Affirmed.