Birmingham Bldg. & Loan Ass'n v. May & Thomas Hardware Co.

• Decision Date: 22 June 1893
• Citation: 99 Ala. 276,13 So. 612
• Court: Alabama Supreme Court
• Parties: BIRMINGHAM BLDG. & LOAN ASS'N v. MAY & THOMAS HARDWARE CO.

13 So. 612

99 Ala. 276

BIRMINGHAM BLDG. & LOAN ASS'N v. MAY & THOMAS HARDWARE CO.

Supreme Court of Alabama

June 22, 1893

Appeal from city court of Birmingham; William W. Wilkerson, Judge.

Bill by the May & Thomas Hardware Company against the Birmingham Building & Loan Association and others to foreclose a mechanic's lien, and for incidental relief. From a decree for complainant, defendant association appeals. Affirmed.

The allegations of the bill as amended show that the May & Thomas Hardware Company, a body corporate, the appellee, furnished to the defendant S. B. Ethridge, by contract with him building materials for buildings and improvements on certain lots of land owned by him, which are described as being in Avondale, Jefferson county; that on November 6, 1891, said Ethridge and his wife executed a mortgage on said lots to the Birmingham Building & Loan Association, the appellant, and on the 11th December, 1891, they executed a second mortgage to said association on said lots; that those mortgages were foreclosed by the association on September 15, 1892 according to the power contained therein, and it became the purchaser of them at the mortgage sale; that said improvements were erected on said lots in the months of November and December, 1891, and in the months of January February, March, April, and May, 1892, and the materials were furnished in the months of February, March, and April, 1892 for which said Ethridge was indebted to complainant, the said May & Thomas Hardware Company, in the sum of $180; that on the 18th day of May, 1892, the complainant filed a statement under the mechanic's lien law in the probate court of Jefferson county, and within six months brought suit in the circuit court of Jefferson county against said Ethridge alone, on said claim, and on the 18th July, 1892, recovered a judgment against said Ethridge, in which judgment a lien on the property was declared in favor of complainant, and the property ordered sold for the satisfaction thereof; that under a venditioni exponas issued in said cause the sheriff sold said property on the 20th day of September, 1892, and the complainant became the purchaser thereof at the price of $50; that at the time of said sale and purchase by complainant, on the 26th September, 1892, the fact that defendant, the appellant, had foreclosed its said mortgage, and had become the purchaser of said property, was unknown to complainant. The bill prays for a reference to ascertain the value of the property at the time said materials and improvements were furnished and its value afterwards; that a decree be rendered for its enhanced value by reason of materials furnished, and that the property be sold, and the proceeds distributed between them in accordance with the priorities and claims of said association and complainant, and for any further relief to which complainant may be entitled. The defendant association made a motion to dismiss the bill for want of equity, and demurred to it on grounds that the court had no jurisdiction, that complainant had no lien on the property described, and that if it had any rights it had an adequate remedy at law to enforce them. The court overruled said motion to dismiss, and the demurrers to the bill as well; hence this appeal.

E. J. Smyer, for appellant.

Wade & Vaughan, for appellee.

HARALSON J.

Chapter 3, pt. 3, tit. 2, Code 1886, headed "Liens of Merchanics and Material Men," provided a system of statutory law on that subject, comprising 31 sections, from 3018 to 3048 inclusive. On the 12th February, 1891, the legislature passed "An act to provide liens for mechanics and material men, and to repeal sections 3018, 3022, 3025, 3026, 3028, 3041, of the Code, and section 3027, as amended by the Acts of 1888-89." Acts 1890-91, p. 578. These sections, 7 in number, were parts of this general mechanics' and material men's lien law, leaving 24 of its sections still of force. In the place of these repealed sections other provisions were supplied, forming, with the unrepealed sections, a system supposed to be...