Schiaffino v. Christ

delivered the opinion of the court.

The peremptory instruction requested by appellant ought to have been given. The petition alleged that she owed appellee certain money for building material purchased by her from ap-pellee and used in the erection of a house situated on her land,, and prayed for a personal judgment and for a sale of the property to satisfy same. The proof showed that the material was not purchased by appellant, but by her husband upon his own account, and she did not give her written consent thereto. The case is therefore controlled by Code 1906, § 3060, and Fairbanks v. Briley, 25 South, 25 South. 354.

The question as to whether appellee is entitled to a lien on. *805tbe bouse, though not upon the land upon which the house is situated does not arise on this record. The petition was not filed on thát theory, and contains no proper averments submitting that question to the judgment of the court.

Reversed and remanded.