Sheldon

Action to foreclose a materialman’s lien. Appellant is a corporation engaged in the lumber business. Sheldon & Son are copartners, and contracted in writing with the defendant Annie C. Severance to furnish the material and erect upon her separate property a dwelling-house. Appellant furnished lumber to Sheldon & Son for the building, and a notice of lien therefor was filed. Both parties to this appeal concede that the contract was void. Sheldon & Son abandoned the work early in January, 1889, before completion, and Mrs. Severance employed mechanics, and proceeded with the work. In May, 1889, she, with husband and servants, moved into and occupied the rear *780 portion of the house, and continued such occupation while work proceeded upon the remainder of the building; and upon August 22, 1889, appellant filed its notice of lien. Sheldon & Son made no defense, and judgment passed against them. Mr. and Mrs. Severance answered, and upon the trial rested upon plaintiff’s evidence, and had judgment. 'This appeal is from the judgment and order denying plaintiff’s motion for a new trial.

The court found that the building was not completed at the time the notice of lien was filed; and, if…