Becker Roofing Co. v. Wysinger

Citation220 Ala. 276,124 So. 858
Decision Date24 October 1929
Docket Number7 Div. 891.
PartiesBECKER ROOFING CO. v. WYSINGER ET AL.
CourtSupreme Court of Alabama

Rehearing Denied Dec. 19, 1929.

Appeal from Circuit Court, Calhoun County; W. B. Merrill, Judge.

Bill by the Becker Roofing Company against Will Wysinger and others to establish a lien on real estate. From a decree sustaining demurrers to the bill, complainant appeals. Reversed and remanded.

Chas F. Douglass, of Anniston, for appellant.

Young &amp Longshore, of Anniston, for appellees.

THOMAS J.

This appeal is from a decree on demurrer. It involves the construction of section 8833, Code of 1923.

Appellant is a roofing company, and at a charge of $285-$15 of which has been paid-it placed a roof on the dwelling of defendant Wysinger. At the time this was done there were three existing and recorded mortgages against the property, given by Wysinger in favor of the co-respondents; one to Mrs. Annie L Blackwell, one to the City Bank & Trust Company, and one executed to J. D. Bibb, but transferred to, and now owned by, the City Bank & Trust Company. None of the mortgages is due by the terms. The mortgagor, Wysinger, was adjudicated a bankrupt March 1, 1929. These facts are set out in the bill as last amended and to which demurrer was sustained at the insistence of the several defendants.

The contract for roofing was made June 10, 1928, subsequent to said mortgages. The original bill was filed October 24, 1928. The last amendment is in the nature of a substituted bill, and upon this appellant is relying.

An important question to be determined is whether or not a mechanic and materialman repairing a building under an existing and recorded mortgage, under contract with the mortgagor, and without the knowledge and consent of the mortgagee, has a lien superior to the mortgage to the extent of the added value? Appellant contends that it has such superior lien. In paragraph ten of the bill as last amended are the following averments:

"Complainant avers that the improvement it made upon the dwelling of said Will Wysinger as herein shown, to-wit: the installation of a roof on said dwelling, has increased the market value of the entire property above described, that is the dwelling and the lot upon which it is situated, to the extent of $270; that with this improvement said property was given a market value this much above what it had before the addition of said improvement; that if the mortgages herein set out are of force, the lien of complainant upon said entire property is superior to that of said mortgage to the extent of said added value, as herein shown."

Appellant asserts (in paragraph 11) that, if it is mistaken as to its superior rights as set out in paragraph 10, as to the land, it has a superior lien upon the building repaired. This superior right or lien is directly contested by demurrer of mortgagees.

The prayer is for sale to enforce the lien, or for receiver to hold the property until appellant is paid, and for general relief. The demurrers were sustained to the bill at the instance of each defendant. From this ruling the appeal is taken.

The demurrer of Wysinger sets up only the ground "that the said bill does not contain equity." As to sustaining this ground of demurrer, there was error. Complainant may establish his lien as against Wysinger, and sell his equity of redemption in the land. Jackson v. Farley, 212 Ala. 594, 103 So. 882; Vesuvius Lumber Co. v. Alabama Co., 203 Ala. 93, 82 So. 107; Pilcher v. Porter, 208 Ala. 202, 94 So. 72; Sturdavant v. Coal Co., 219 Ala. 303, 122 So. 178; Enslen v. Wheeler, 98 Ala. 200, 206, 13 So. 473. The City Bank & Trust Company and Mrs. Blackwell demur separately, but set out the same and many other grounds. Said last named demurrants contend that Wysinger has only an equity of redemption; that they have the legal title, evidenced by the recorded mortgages; that appellant's claim or lien is that for inseparable repairs made under contract with the mortgagor on the builder subject to said mortgages, and such claim or lien charge takes a place subordinate to the mortgages. The contention is further made by demurrants that appellant can in no event sell the property before the law day of the mortgages.

The assignments of error are that the court erred in sustaining demurrer of appellee Will Wysinger; in sustaining demurrer of appellee City Bank & Trust Company; in sustaining demurrer of appellee Mrs. Annie L. Blackwell; and in the decree it rendered on demurrers to the bill as amended:

When material and labor are furnished in the repair and betterment of a building in such way as to increase the value of the entire property, subject to prior mortgages, (1) does the statute give a lien on the entire property which, to the extent of the added value, is superior to the lien of the existing recorded mortgage? (2) and may that lien be enforced by a sale of the property before the maturity of the mortgage? (3) or may the property be held by the receiver until the net rents have discharged the claim for repair? In section 8833, Code of 1923, are the provisions:

"Such lien, as to the land, shall have priority over all other liens, mortgages, or incumbrances created subsequently to the commencement of the work on the building or improvement; and, as to the building or improvement, it shall have priority over all other liens, mortgages, or incumbrances, whether existing at the time of the commencement of such work, or subsequently created; and the person entitled to such lien may, when there is a prior lien, mortgage, or incumbrance on the land, have it enforced by a sale of the building or improvement under the provisions of this article, and the purchaser may, within a reasonable time thereafter, remove the same." Jefferson County Savings Bank v. Ben F. Barbour Plumbing & Electric Co., 191 Ala. 238, 68 So. 43; Magnolia Land Co. v. Malone Investment Co., 202 Ala. 157, 79 So. 641.

This, and like statutes in preceding Codes, are from the Act of 1875-76, p. 165, § 3, giving preference to mechanic's lien over other liens on buildings or other improvements, or the ground, or either of them, " subsequent to the commencement of such buildings or improvements; and such lien shall attach to the buildings, erections, or improvements only for which they were furnished or the work was done, in preference to any prior lien, incumbrance, or mortgage upon the land upon which such buildings, erections, improvements or machinery has been erected or put; *** where there is a prior mortgage or lien upon the land," the person enforcing the mechanic's lien "may have such building, erection, or improvement sold under execution *** and the purchaser may remove the same within a reasonable time thereafter." Code 1876, § 3442. It is provided in the Code of 1886, § 3019, that the priority is over liens and mortgages "created subsequently to the commencement of the work on the building, etc."; gives "priority over all other liens, etc., whether existing at the time of the commencement of such work, or subsequently created," and provides for the enforcement of that lien by the removal (of) the building. Like provision is contained in § 2724, Code of 1896, and gave the purchaser a reasonable time to remove same-the "building or improvement"-from the land. And in like words, the "priority of lien" was given a place in the Code of 1907, § 4755 and in § 8833, Codes of 1923 and 1928. Such were the statutes construed by this court and carried into succeeding Codes with constructions to be indicated.

1. The lien of a materialman on the erection of a building on land is subordinate to a mortgage executed and recorded prior to the contract for material used, and is superior to a subsequent mortgage or other lien. First Ave. Coal Co. v. King, 193 Ala. 438, 69 So. 549; Jackson v. Farley, 212 Ala. 594, 103 So. 882; Grimsley v. First Avenue Coal Co., 217 Ala. 159, 115 So. 90; Welch v. Porter, 63 Ala. 225, 230; Leftwich v. Florence, etc., Co., 104 Ala. 584, 598, 18 So. 48; Birmingham Building & Loan Ass'n v. Boggs, 116 Ala. 587, 22 So. 852, 67 Am. St. Rep. 147. (2) It is further declared by this court, that the effect of said statute is that, when a new building, structure, or improvement is erected or constructed on land subject to mortgage or incumbrance (a) as to the land, the lien is subordinate to the prior lien or incumbrance; (b) as to the building or structure so placed upon the mortgaged land, the statutory lien under discussion is superior to such existing incumbrance on the land. That is to say, the same had not become a part of the land as affected by the prior mortgage or incumbrance, and may under the statute, and according to equitable principles, be sold and removed without affecting or impairing the obligation of the mortgage, or impairing its security. Pilcher v. Porter Co., 208 Ala. 205, 94 So. 72; Grimsley v. First Ave. Coal Co., 217 Ala. 159, 115 So. 90; Sturdavant v. First Ave. Coal Co., 219 Ala. 303, 122 So. 178; Birmingham Building & Loan Ass'n v. Boggs, 116 Ala. 587, 22 So. 852, 67 Am. St. Rep. 147; Turner v. Robbins, 78 Ala. 592; Forbes v. Alabama, etc., Co., 176 Ala. 423, 429, 58 So. 398; First Ave. Co. v. McWilson, 182 Ala. 276, 62 So. 531; Wimberly v. Mayberry & Co., 94 Ala. 240, 245, 246, 10 So. 157, 14 L. R. A. 305; Vesuvius Lumber Co. v. Ala. F. M. & B. Co., 203 Ala. 93, 82 So. 107; Wilbourne v. Mann, 203 Ala. 26, 81 So. 816; 2 Alabama Law Journal, 253.

The statute was construed in Wimberly v. Mayberry, 94 Ala. 240, 244, 246, 10 So. 157, 158, 14 L. R. A. 305, to give a mechanic's or materialman's lien, when the work is done and material furnished and used in completion of an unfinished house, on land subject to a prior mortgage; and the statutory lien...

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13 cases
  • Tucker v. Crown Corp.
    • United States
    • Florida Supreme Court
    • November 2, 1938
    ... ... the right to credit the amount of its lien on the bid made by ... it at the sale. In Becker Roofing Co. v. Wysinger et ... al., 220 Ala. 276, 124 So. 858, the plaintiff was ... attempting ... ...
  • Grayson v. Goolsby
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    • January 14, 1932
    ... ... the interest of equal justice and fair play are the following ... of our own cases; Becker Roofing Co. v. Wysinger, ... 220 Ala. 276, 124 So. 858; Magnolia Land Co. v. Malone ... ...
  • Byrum Hardware Co. v. Jenkins Bldg. Supply Co.
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    ... ... Ala. 202, 94 So. 72; Central Lumber Co. v. Jacks, ... 222 Ala. 475, 132 So. 721; Becker Roofing Co. v. Jones ... (Ala. Sup.) 144 So. 865. See, also, Becker Roofing ... Co. v. Wysinger, ... ...
  • Becker Roofing Co. v. Jones
    • United States
    • Alabama Supreme Court
    • December 15, 1932
    ...acta, as to the respondents-mortgagees. Wimberly v. Mayberry & Co., 94 Ala. 240, 10 So. 157, 14 L. R. A. 305. In so far as Becker Roofing Co. v. Wysinger et al., supra, conflicts with the foregoing opinion, it is Affirmed. All the Justices concur. ...
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