First Avenue Coal & Lumber Co. v. McWilson

• Decision Date: 15 May 1913
• Citation: 182 Ala. 276,62 So. 531
• Court: Alabama Supreme Court
• Parties: FIRST AVENUE COAL & LUMBER CO. v. McWILSON.

62 So. 531

182 Ala. 276

FIRST AVENUE COAL & LUMBER CO. v. McWILSON.

Supreme Court of Alabama

May 15, 1913

Rehearing Denied June 19, 1913

Appeal from Chancery Court, Jefferson County; A.H. Benners Chancellor.

Bill by the First Avenue Coal & Lumber Company against Thomas McWilson to enforce a lien. Judgment sustaining demurrer to the bill, and complainant appeals. Affirmed.

The allegations of the bills are that on January 3, 1912, Jessie and Hattie Crocker owned a certain lot in the county of Jefferson described as lot 15 and the N. 1/2 of lot 14 in block 4 in the Oak Ridge Park subdivision, and that Thomas McWilson owned lot 13 in the S. 1/2 of lot 14 in block 4 in the same subdivision, the property being adjacent, and that on the date mentioned complainant sold and furnished building material, lumber, etc., to said Jane and Hattie Crocker under a contract with them for the purpose of erecting and constructing a building on lot 15 in the N. 1/2 of lot 14 but that they, through inadvertence or mistake, without notice to complainant erected the house partly on lot 13 and the S. 1/2 of lot 14, above described; that the amount furnished was $234.59, none of which has been paid, and that within the time prescribed by law complainants complied with all the requirements of law for establishing a lien on the house and property above described as belonging to the said Crockers, and that on June 24, 1912, a judgment was rendered by the city court of Birmingham on summons and complaint for the sum of $247.54 and costs in favor of complainant adjudging the property herein described as belonging to the said Crockers, was subject to a lien in favor of complainants and condemning the same to be sold for the satisfaction of complainant's demand, and that the property belonging to the Crockers, together with said land, was on, to wit September 12, 1912, duly and legally sold by the sheriff of Jefferson county, and complainant became the purchaser, but that, owing to a prior outstanding mortgage on said land for an amount greater than the land is reasonably worth, its interest in said land is valueless, and that its claim on the house if the same has been properly located would be superior to the claim of the outstanding mortgage, and, if said house had been properly located, the party holding the first mortgage would pay off the amount of complainant's claim; that said house or building can be removed from the land that is claimed or owned by said McWilson without any material damage to land, and that the said McWilson has never paid plaintiff anything for the building located on part of his land, and that it would be inequitable, unjust, and unfair to enrich the said McWilson at the expense of this complainant. The prayer is to remove the building or to decree that McWilson is indebted to complainant in the sum above mentioned, and that a lien be established. The amendment sets up facts attempting to show McWilson's knowledge of the fact during the process of construction and erection; that the house was being erected or built on part of his land; and his failure to raise any objection to its location or completion until after the house had been sold and purchased by the complainant, whereupon he took forcible possession, and has since held it as against the complainant. The amendment states further facts showing wanton knowledge on complainant's part of the fact that the house was not being erected on lands belonging to the Crockers, together with the other facts set up in the original bill. The demurrers raise the points decided.

Horace C. Wilkinson, of Birmingham, for appellant.

Francis M. Lowe, of Birmingham, for appellee.

ANDERSON J.

While this court has several times held that the lien given mechanics and materialmen, under section 4754 of the Code of 1907, is enforceable against the improvement or building though lost as to the land (Salter v. Goldberg, 150 Ala. 511, 43 So. 571; Bedsole v. Peters, 79 Ala. 135; Turner v. Robbins, 78 Ala. 593), yet in each instance a contractual obligation existed between the said mechanic or materialman and the owner of the said building or improvements.

It has never been held in this state that the statute gave a lien on the land or house of one who was not a party to the contract and upon whom no legal obligation rested to pay said mechanic or materialman. In fact, the statute does not give a lien on the material furnished (Lee v. King, 99 Ala. 246 13 So. 506), but upon the land and building, one or both, and only upon the title or interest of the owner or proprietor in and to the same. Therefore, if the proprietor or debtor buys material and uses it in improving the lands of another, the statute does not fasten a lien on the land of a third person. Or, if the purchaser uses the material in erecting a building upon the land of another, under such circumstances as to render the building a fixture, and thereby it becomes a part of the realty, the owner of the land is the owner of the building, and the lien of the materialman...