ActioN by Zachary & Zachary against D. R. Perry and Kate I). Perry, his wife, heard by Judge II. B. Starbuclc, at April Term, 1901, of the Superior Court of Wayne County. This case was brought by appeal from the Court of a Justice of the Peace to the Superior Court of Wayne County, and was heard upon the following agreed facts: “1. That at the times hereinafter mentioned, the defendant Katie D. Perry was a married woman, and was not a free trader. “2.
¶1after stating the case. Tbe attempt to file notice of a lien by Zachary & Zachary against the property c-f the feme 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. Mouht Olive, N. 0., Nov. 16, 1898.
"Mr. D. Perry and wife K. D. Perry will please pay to Zachary & Zachary the sum of eighty-four and ninety-eight one-hundredth dollars, 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.”
¶2Probate 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 ; Loan Association v. Black, 119 N. C., 323.
