Big Three Lumber Co., Inc. v. Curtis

• Citation: 93 So. 487,130 Miss. 74
• Decision Date: 23 October 1922
• Docket Number: 22772
• Court: United States State Supreme Court of Mississippi
• Parties: BIG THREE LUMBER CO. INC., v. CURTIS

93 So. 487

130 Miss. 74

BIG THREE LUMBER CO. INC., v. CURTIS

No. 22772

Supreme Court of Mississippi

October 23, 1922

1. MECHANICS' LIENS. Superior to prior, but not subsequent incumbrances without notice, on the land on which houses erected.

Under section 3058, Code 1906 (section 2418, Hemingway's Code) a mechanic's lien upon the houses erected is effective and superior as as against prior, but not subsequent without notice, incumbrances upon the land.

2. MECHANICS' LIENS. Purchaser acquires buildings free from prior incumbrance, and may remove them.

Under section 3069, Code 1906 (section 2429, Hemingway's Code) where the mechanic's lien judgment is for the sale of the buildings alone erected on the land subsequently to prior incumbrances, the purchaser at the sale will acquire the buildings free from the prior incumbrance, and may remove them with reasonable dispatch. This does not seem to be true though we do not decide, where the building is merely repaired or where the lien is adjudged against the land, but in such cases the lien is subject to the prior incumbrance.

3. MECHANIC'S LIENS. Superior to claim for amount paid on materials.

The mechanic's lien against the buildings erected is superior to the claim of the prior incumbrancer for part payment by a subvendee and mortgagor of the land on the materials furnished in the erection of the buildings.

HON. W A. ALCORN, JR., Judge.

APPEAL from circuit court of Quitman county, HON. W. A. ALCORN, JR. Judge.

Action by the Big Tree Lumber Company, Inc., against John Z. Curtis. From a judgment granting insufficient relief, plaintiff appeals. Reversed, and judgment entered.

Judgment reversed.

W. F. Gee, for appellant.

The first three grounds of the motion was contended for and earnestly argued to the court below, and sections 2418 and 2420, Hemingway's Code, was read and discussed to the court, and as appellant understands, the motion was decided by the court on his construction of these two statutes, the court holding that, and rightly, that the case did not come under section 2420, as the defendants A. M. and A. B. Shelton were not tenants, and that the appellants were entitled to a lien against the houses if at all only under section 2418 of Hemingway's Code, and holding that the motion as made by the appellee, Curtis, should be sustained under the last clause of said section which reads as follows:

"Such lien shall take effect as to purchasers or incumbrancers for valuable consideration without notice thereof, only from the time of filing the contract under which the lien arose in the office of the clerk of the chancery court." And as appellee Curtis had lien on the land at the time the houses were built, and there was no consent shown by him to the purchase of the material and the building of the houses that he was an incumbrancer for value without notice. Appellants think the construction of the court on this part of the above-mentioned section is wrong, that this section has reference to innocents, incumbrancers after the building has been done, and not to holders of prior liens, who get the benefit of the increase in value of the land on account of the buildings being placed on the land covered by his lien.

Appellant thinks the wording of the section as copied shows this plainly, but if there is or should be any doubt about it, that the following part of section 2420, Hemingway's Code, makes it clear that it is right in its contentions. After stating that the officer shall levy on, advertise and sell, and if the sale be of the house, building, structure or fixtures alone, and the same shall have been erected or constructed and put on the land subsequently to a former incumbrance on the land, the purchaser shall acquire the same free from such former incumbrances, etc.

Appellant thinks it made a complete case under our materialman's lien statutes and that the instructions of the court, verdict of the jury, and the judgment as entered thereon were correct and proper, and that the order sustaining the appellee's motion was error, that the above three sections of Hemingway's Code, the case annotated thereunder sustains this contention and that the order of the court on the motion of appellee should be reversed and the cause remanded.

P. H. Lowery, for appellee.

The appellee in this case is within the express letter and spirit of the statute which says that the lien shall take effect as to purchasers and encumbrancers for valuable consideration without notice only from the time of the commencement of the suit. The appellee was at the time the buildings were erected an encumbrancer and the notice provided necessarily means notice at the time he became an encumbrancer. In this case he could not possibly have had such notice, as the houses were built after the encumbrance was of record. He is within the letter of the exception as well as its spirit. The old statutes expressly gave the lien to the mechanic superior to a previous lien, but there is nothing in this statute resembling such a provision. If the legislature intended for the mechanic's lien to have precedence over a lien then existing it would have been easy to say so as was done in the former statute. The fact that such a provision was in former statute and is left out of present statute is strongly indicative of the purpose of the legislature to make the change. The fact that by the first statute in 1830 the lien was given over previous as well as subsequent liens, and by the amendment of 1838 the lien was given only superior to liens arising subsequently, and again in 1840, the lien was again declared to be not subject to any other lien whatsoever, and by the present statute all encumbrancers without notice having priority over the lien, seems to me to be conclusive evidence that the legislature did not intend for a mortgagor to be allowed to put upon the land improvements which are a part of the freehold, subject to removal by the party erecting the buildings, after the mortgage had been foreclosed.

It is well settled that a tenant may make improvements which ordinarily would be a part of the freehold, and that he may remove them during his tenancy, but this is not the case with a mortgagor. The mortgagor cannot remove them and cannot authorize any one else to remove them and cannot so contract as to permit any one else to remove them without the consent of his mortgagee. This is particularly the case as between vendor and vendee, as expressly held in the English case, supra.

It will be observed that there was another change in this statute first appearing in the Code of 1871, which I think is very material here. In the case of Buchanan v. Smith, 43 Miss. 90, which was decided under the provisions of the Code of 1857, the court holds that the lien held on the buildings against a purchaser without notice, but that it did not hold on the land. His conclusion is based on that statute which provided (Code 1857, page 327, article 1) that the mechanic should have a lien on the buildings and the land, but followed this declaration with these words: "but such a lien on the lands shall only take effect as to the purchaser, etc., from the filing of the contract in this case the conclusion of the court is reached from the fact that the lien on the building held against purchasers and encumbrancers, but that it did not hold on the land because of this provision of the Code (43 Miss., at page 99). This case was followed in McAllister v. Clopton, 51 Miss. 257. At page 261 the court says: "It has been settled by several decisions that the lien of the mechanic is subordinate to prior encumbrances so far as respects the land," citing here the decisions under Code of 1857 and then follows: "But Brandon's lien was nevertheless good as against the buildings." Now it will be observed that in the Code of 1871, section 1603, the words "on the land" were left out making it read: "but such lien shall only take effect as to purchasers, encumbrancers, etc., from the time of the filing of the contract." This provision was brought forward into the Codes of 1880, 1892, 1906 and Hemingway, just as it is in the Code of 1871 on this point, providing that the lien should not take effect as to purchasers, encumbrancers, etc., on either the buildings or the land. It will be noticed that all of the authorities cited, and all of the cases so far as I have observed, on this particular point were decided under Codes prior to 1871. The case of McAllister v. Clopton, supra, was decided in 1875, but the controversy arose and the case was decided under the Code of 1857 as shown on page 261 of the opinion. The controversy arose out of a contract made in 1859. If these decisions are followed, the court must hold that as to purchasers and prior encumbrancers, the lien of the mechanic has no effect on either the buildings or the land, under the present statute, for the exception covers the buildings as well as the land in the statute as it now reads and has read since 1871.

As stated above, under the present statute, if the lien is good against the buildings it is good against the land also in this case, as the statute makes no distinction on...