Becker Roofing Co. v. Jones

• Citation: 225 Ala. 638,144 So. 865
• Decision Date: 15 December 1932
• Docket Number: 7 Div. 146.
• Parties: BECKER ROOFING CO. v. JONES ET AL.
• Court: Alabama Supreme Court

144 So. 865

225 Ala. 638

BECKER ROOFING CO. v. JONES ET AL.

7 Div. 146.

Supreme Court of Alabama

December 15, 1932

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

Bill to enforce a materialman's and mechanic's lien by the Becker Roofing Company against R. H. Jones and others. From a decree sustaining a demurrer to the bill, complainant appeals.

Affirmed.

Chas F. Douglass, of Anniston, for appellant.

Knox Dixon, Sims & Dixon and Harrison & Stringer, all of Talladega, for appellees.

BROWN J.

This appeal is from an interlocutory decree sustaining the defendants' demurrers to the amended bill filed by appellant seeking to enforce a materialman's and mechanic's lien against the lands and the building thereon (a residence), for materials and labor furnished by complainant in making repairs (placing a new roof) on the building, and for solicitor's fees for enforcing the contract under which the materials and labor were furnished.

The bill avers that the roof was installed on said house under a contract between complainant and the defendant Jones "who was the owner of said property," on August 28 1931, describing the property as "one house and lot in the Town of Munford, Alabama, known as the Kilpatrick lot and more particularly described as follows [then followed a description by metes and bounds] containing one acre of land, being the lot upon which the residence of R. H. Jones is located in Munford, Talladega County, Alabama," and that in said contract the contractee agreed to pay a reasonable attorney's fee.

The bill, after averring the terms of the contract, the default on the part of Jones maturing the entire indebtedness, and the filing of its "claim of lien" in the office of the judge of probate of Talladega county, further avers in paragraph 5 thereof: "That on January 4, 1928, R. H. Jones and his wife executed to respondent, Talladega National Bank, a mortgage in the sum of Seven Hundred, Ninety-Six & 50/100 Dollars due December 14, 1928, and conveying to said respondent the land hereinabove described and also that real estate adjacent thereto [also described]." (Italics supplied.)

And on "January 17, 1930, R. H. Jones and his wife executed to respondent, Long Grocery Co., Inc., a mortgage in the sum of Six Hundred, Forty-Eight Dollars, due October 1st, 1930, conveying therein to said respondent the same real estate conveyed to the Talladega National Bank in the mortgage described in paragraph five of the bill, and subject thereto," etc.; that the indebtedness secured by said mortgages is in part unpaid.

The bill further avers: "That in placing this roof upon the residence on the real estate described in paragraph 2 hereof, said roof increased the market value of said property in its entirety, that is upon the said land and the residence roofed to the extent of $330.00, that said improvement is attached to the said residence in such way that it can not be taken therefrom without its destruction and great damage to the residence, leaving said residence open at the top and exposed to all kinds of weather, said improvement being, therefore, inseparably blended with said residence. Complainant avers further that its lien claim as set up in the instrument, copy of which is attached hereto as Exhibit 'C,' is, to the extent of its improvement, as herein shown, has increased the market value of the property described in paragraph 2 hereof in its entirety, superior and prior in right to the mortgage of respondent Talladega National Bank, as set out in paragraph 5 hereof and also to that of respondent, Long Grocery Co., as set out in paragraph 6 hereof, and this priority it claims."

The circuit court was of opinion that it was incumbent on the complainant to show by the averments of its bill that the repairs placed on the building enhanced the value of the entire property to the extent that the proceeds at the sale thereof would be sufficient to pay the debts secured by both mortgages in full and pay some part of complainant's claim, and that in this respect the averments of the bill were too indefinite and uncertain. For this reason the circuit court sustained the demurrers to the amended bill.

It must be conceded that next to the last paragraph in the opinion of the court in Becker Roofing Co. v. Wysinger et al., 220 Ala. 276, 124 So. 858, tends to support the ruling of the court, but it is apparent from the opinion that the utterance was purely dictum. The appeal in that case was from an interlocutory decree sustaining demurrers to the bill, and the right of the mortgagee to bid at the sale was not a question in the case. This dictum and the first paragraph of the opinion, holding that the lien only attached to the equity of redemption of the mortgagor-owner, are in conflict with the law as declared by this court in the prevailing opinion rendered in Wimberly v. Mayberry & Co., 94 Ala. 240, 10 So. 157, 14 L. R. A. 305, construing and applying the statutes (Code 1886, §§ 3018, 3019), which have been brought forward in the several Codes without material alteration. Magnolia Land Co. v. Malone Investment Co., 202 Ala. 157, 79 So. 641. In the last-cited case the lien was enforced against the property after foreclosure which cut off the equity of redemption.

The statute as construed in Wimberly v. Mayberry & Co., supra gives to the mechanic who does or "performs any work or labor upon, or furnishes material *** for any building or improvement...