Brown v. Ward

• Decision Date: 20 May 1942
• Docket Number: 676.
• Citation: 20 S.E.2d 324,221 N.C. 344
• Parties: BROWN et al. v. WARD et al.
• Court: North Carolina Supreme Court

20 S.E.2d 324

221 N.C. 344

BROWN et al. v. WARD et al.

No. 676.

Supreme Court of North Carolina

May 20, 1942

Civil action to recover for labor and material furnished and to enforce lien therefor.

On May 3, 1941, defendants Harris leased to defendant Ward certain land fronting on the new hard surface highway leading from the Fayetteville-Raeford Highway to the Fort Bragg Highway. The lease was for the period from the date thereof to November 3, 1946, with privilege of renewal for an additional period of 5 years. The lease was in consideration of covenants and agreements on the part of Ward: (1) to pay $1,000 per annum rent; (2) to construct a building on said premises facing and adjacent to the Fort Bragg Highway in accord with plans and specifications to be furnished by him and to be inspected and approved by the lessors; and (3) in the event the lessee decided to build a building facing on the new hard surface highway he was to pay an additional sum of $500 from the date of the construction, in advance. There was also a stipulation in respect to the adjustment of taxes. It was further stipulated that after the expiration of the lease, or if the lease was abandoned by the lessee prior to its expiration, then all buildings or structures, together with sewerage, electrical attachments, etc., shall become the property of the lessors free from any claim or right of the lessee; that the lessee shall operate a recreational center that the lessors should procure insurance and "if the building or buildings should be destroyed or rendered unfit for use by fire or other casualty, and the 'leasee' does not desire to rebuild the buildings as originally placed or approximately at the same cost, then in that event, this lease shall thereupon terminate, but the said 'leasee' shall have no privilege of rebuilding the buildings then the 'leasors' will pay the 'leasee' such sum as is collected by reason of the construction of said buildings, less such insurance premium or premiums as said 'leasors', to be paid at such time as the 'leasee' has reconstructed the building."

The lessee entered into a contract with one Wilkinson for the construction of a building upon the premises. Wilkinson employed plaintiffs to furnish the material and to do the work required in connection with plumbing specified in the plans. At that time plaintiff did not know Ward. Thereafter Ward confirmed the plumbing subcontract, authorized the work to be charged to him and from time to time procured plaintiffs to do additional work. The total charges for labor and material furnished by plaintiffs was $1,208.69, of which Ward paid $400. At no time did plaintiffs contact the defendant Harris or know that they were in anywise interested in the land or the construction of the building. Ward having failed to pay the balance due, plaintiffs filed a lien and instituted this action for the enforcement thereof.

The lessee abandoned the lease and vacated the premises before the expiration of the lease.

When the cause came on to be heard in the court below, at the conclusion of the evidence for the plaintiff on motion duly made, the court entered judgment as of nonsuit as to the defendants Harris. Plaintiffs excepted and appealed without proceeding to judgment against Ward.

Ellis & Nance, of Fayetteville, for appellants.

Rose & Lyon, of Fayetteville, for appellees Harris.

BARNHILL Justice.

Appellants, in their brief, discuss only the exceptions directed to the alleged error of the court below in granting the motion to dismiss as of nonsuit and in signing judgment thereon. All other exceptions are deemed to be abandoned. Rule 28; In re Beard's Will, 202 N.C. 661, 163 S.E. 748.

In asserting error in the judgment of nonsuit the plaintiffs pose this question: "Does the lease by its terms constitute the lessee an agent of the lessors for the purpose of improving the premises to the extent expressly provided in the lease?" The question concedes that it is upon this theory, if at all, they are entitled to recover.

The statute, C.S. § 2433, is plain and unambiguous. "Every building built *** shall be subject to a lien for the payment of all debts contracted for work done on the same, or material furnished."

In order to create a lien in favor of a person who builds a house upon the land of another the circumstances must be such as to first create the relationship of debtor and creditor, and then it is for the debt that he has a lien. The lien does not exist without a contract. Wilkie v. Bray, 71 N.C. 205; Lester v. Houston, 101 N.C. 605, 8 S.E. 366; Boone v. Chatfield, 118 N.C. 916, 24 S.E. 745; Weathers v. Borders, 124 N.C. 610, 32 S.E. 881; Weathers & Perry v. Cox, 159 N.C. 575, 76 S.E. 7; Charlotte Pipe & Foundry Co. v. Southern Aluminum Co., 172 N.C. 704, 90 S.E. 923; Honeycutt v. Kenilworth Development Co., 199 N.C. 373, 154 S.E. 628; Boykin v. Logan, 203 N.C. 196, 165 S.E. 680.

"The law seems to be settled in this state that there must be a debt due from the owner of the property before there can be a lien. The debt is the principal, the basis, the foundation upon which the lien depends. The lien is but the incident and cannot exist without the principal." Baker v. Robbins, 119 N.C. 289, 25 S.E. 876; Bailey v. Rutjes, 86 N.C. 517; Boone v. Chatfield, supra. And a debt contracted is a debt agreed to be paid. Ball & Sheppard v. Paquin, 140 N.C. 83, 52 S.E. 410, 3 L.R.A.,N.S., 307; Roberta Mfg. Co. v. Royal Exch. Assurance Co., 161 N.C. 88, 76...