Central Lumber Co. v. Jacks

• Decision Date: 15 January 1931
• Docket Number: 6 Div. 735,735-A.
• Citation: 132 So. 721,222 Ala. 475
• Parties: CENTRAL LUMBER CO. v. JACKS ET AL.
• Court: Alabama Supreme Court

132 So. 721

222 Ala. 475

CENTRAL LUMBER CO. v. JACKS ET AL.

6 Div. 735, 735-A.

Supreme Court of Alabama

January 15, 1931

Rehearing Denied March 19, 1931.

Appeal from Circuit Court, Jefferson County; J. Russell McElroy Judge.

Bill by the Central Lumber Company against Tom Jacks, W. J. Mims and W. J. Mims, David Mims and Walter Mims, as executors of the estate of K. D. Mims, deceased, to enforce a materialman's lien. From the decree, complainant appeals and respondents (other than Jacks) cross-assign error.

Affirmed.

J. A Estes, of Bessemer, for appellant.

Smyer, Smyer & Bainbridge, of Birmingham, for appellees.

THOMAS J.

The action is to enforce a masterialman's lien upon certain property now owned by the appellee Tom Jacks. The other appellees sold the property to Jacks, who executed to them three purchase-money mortgages to secure the purchase price. The lands consisted of approximately one hundred and fifty-six acres located about five miles from Birmingham. The executors of the Mims estate sold a portion of the acreage to Jacks, W. J. Mims sold him a portion, and Walter Mims sold him the balance; the three tracts adjoining each other. Three deeds were executed by the vendors, and, as we have stated, three separate purchase-money mortgages were executed by Jacks to secure the balance of the purchase price. These mortgages were duly filed for record in the probate office of Jefferson county, Ala., prior to the time he erected the specific improvements upon the land and for which material was furnished and liens therefor now sought to be established.

After the purchase-money mortgages were recorded, the grantee erected a dairy barn near the center of the one hundred and fifty-six acres. And in that improvement purchased certain material from the complainant which was used in the erection of the barn, and he failed to pay for the same. The barn and an acre of land surrounding it are located partly on the tract sold to Jacks by W. J. Mims, and partly upon the tract sold by the executors of the Mims estate to Jacks. The property is located only about five miles from the court house in Birmingham, is residential or subdivision property, and for such purpose rather than valuable for farming or dairying. A question argued is whether its value was increased by the building of a dairy barn thereon, or whether such a structure decreased the value of the land upon which located, and impaired the value of the adjoining land. Portions of the barn and improvements could be removed from the land; that is, the portions not constructed of cement and so affixed to the land.

The bill of complaint as last amended and it is the insistence of counsel for appellant that: (1) Complainant desires to enforce its lien upon the dairy barn and also the land upon which it is situated and one acre adjoining thereto, and to have its lien on both the barn and the acre held to be prior and superior to the purchase money mortgages; (2) complainant desires that the acre of land and the land upon which the barn is situated be released and discharged from the lien of the superior purchase-money mortgages and it be given a first and prior lien upon this land and the barn, or that the acre and the land upon which the barn is situated be separated from the other land included in the mortgages, and the proportionate part of the purchase-money debt be ascertained and charged thereto, and that this portion of the land be sold for the satisfaction of the lien of complainant and such proportionate part of the purchase money mortgage debt. The appellees (except Tom Jacks) denied the existence of the lien claimed by appellant and relied upon their prior and superior purchase money mortgages on the land.

A decree pro confesso was taken against Tom Jacks, the grantee in the deeds and grantor in the several mortgages, and a personal judgment for the amount of the debt was rendered against him. The trial court gave the appellant a prior and superior lien upon the barn and improvement with the right to sell and remove the same, and held that the purchase-money mortgages owned by the other appellees were prior and superior liens on the land. There was a cross-assignment of errors by all of the appellees, except Tom Jacks. This cross-assignment of errors raises the question of whether, as against these appellees, the complainant proved that it complied with the statutes relating to the filing of the lien statement?

The amended bill and its exhibits will be considered with the original bill and in aid thereof. Grimsley v. First Ave. Coal & Lbr. Co., 217 Ala. 159, 161, 115 So. 90, and authorities; Richardson Lumber Co. v. Howell, 219 Ala. 328, 122 So. 343. The claim for lien filed in the probate office and attached as an exhibit to the bill as amended was sufficient under the statute. Richardson Lbr. Co. v. Howell, supra; Ingram v. Howard, 221 Ala. 328, 128 So. 893; section 8832 et seq., Code. There is no merit in the cross-assignment of errors by appellees.

A mortgagor in possession of land is the owner or proprietor in a sense that he may contract for improvements that may be enforced in equity according to the respective superior rights of the several parties, and as not to impair the obligation of the mortgage contract. Becker Roofing Co. v. Wysinger, 220 Ala. 276, 124 So. 858; Ingram v. Howard, supra. See, also, Sorsby v. Woodlawn Lumber Co., 202 Ala. 566, 81 So. 68; Sturdavant v. First Ave. Coal & Lumber Co., 219 Ala. 303, 122 So. 178.

It is now established by this court that a duly recorded prior mortgage on land is superior, as to the land, to a materialman's lien for lumber and material subsequently furnished at the instance of the mortgagor, and used in the erection of improvements on the land subsequent to execution and recordation of said prior mortgage. That an independent building erected on mortgaged land may be subject to the prior lien on the building and the right of sale and removal for the satisfaction of such building or materialman's lien, has been recognized and may be enforced and not impair the prior mortgage contract. Becker Roofing Co. v. Wysinger, supra; Pilcher v. E. R. Porter Co., 208 Ala. 205, 94 So. 72.

The building or improvements placed upon the land by Jacks-the mortgagor and owner-did not become a part of the land so far as the appellant is concerned, and in decreeing that it had a prior lien on...