Fowler v. Mackentepe

• Decision Date: 23 January 1937
• Docket Number: 6 Div. 38
• Citation: 172 So. 266,233 Ala. 458
• Parties: FOWLER v. MACKENTEPE.
• Court: Alabama Supreme Court

172 So. 266

233 Ala. 458

FOWLER v. MACKENTEPE.

6 Div. 38

Supreme Court of Alabama

January 23, 1937

Appeal from Circuit Court, Cullman County; A.A. Griffith, Judge.

Bill to enforce materialman's lien by L.A. Mackentepe, as executor of the estate of J. Mackentepe, deceased, and individually, against G.W. Smith, Gillie Gilbreath, and John J. Fowler (grantee of Gilbreath). From a decree overruling a demurrer to the bill, respondent Fowler appeals.

Affirmed.

BROWN J., dissenting.

St John & St. John, of Cullman, for appellant.

H.H Kinney, of Cullman, for appellee.

THOMAS Justice.

The bill was to enforce a materialman's lien. It was filed by the complainant as executor of the estate of J. Mackentepe deceased, and individually.

The statement aiding the bill as an exhibit (Grimsley v. First Ave. Coal & Lumber Co., 217 Ala. 159, 115 So. 90) was made and filed by appellee in his representative capacity and not as an individual.

The demurrer challenged the bill for misjoinder of parties complainant.

The description of the property for which the materials are claimed to have been furnished and used in the building erected and the improvements made thereon is as follows:

"Complainants *** aver that the materials furnished under the terms of said contract were used in the building and improvements made and erected on the following described property which is not in a city, town or village, but the same is located in Cullman County, Alabama, to-wit:

"A one story frame store building and one acre in addition to the land upon which the building or improvement is situated, said one acre being a part of the NW- 1/4 of the NW- 1/4, Section 19, Township 9, Range 2 West, and also the SW- 1/4of the SW- 1/4 of Section 18, Township 9, Range 2 West, said tract upon which said building is located containing 80 acres more or less.

"And complainants further aver that said materials so furnished and used, contributed

materially to the enhancement in value of the above described property."

The averments of the bill, "that respondents, G.W. Smith and Gillie Gilbreath, under contract or agreement between these respondents constructed or erected the building and improvements on the above described property as a joint enterprise in and as a part of which said materials furnished by complainants were incorporated or used; *** that the agreement or terms of the contract between respondents is unknown to *** complainant; *** that the credit and contract or agreement to furnish material and supplies was made between complainants and the respondents, G.W. Smith and Gillie Gilbreath, and that the materials and supplies were furnished direct to the owner of said property, and the credit was extended to the owner of said property and the owner of said property, therefore, had notice of the extension of such credit," show a joint interest as to the materials furnished and used in the improvements made on the property; the contract for same being executed by co-operation of the respondents Smith and Gilbreath for Gilbreath, the owner of the property.

The claim filed by the complainant in the office of the judge of probate was as follows:

"Comes L.A. Mackentepe, as executor of the estate of J. Mackentepe, deceased, and files this statement in writing, verified by the oath of L.A. Mackentepe, who has personal knowledge of the facts herein set forth:

"That said L.A. Mackentepe, as executor of the estate of J. Mackentepe, deceased, claims upon the following property, situated in Cullman County, Alabama, to-wit:

"A one story frame store building and one acre in addition to the land upon which the building or improvement is situated, said one acre being a part of the NW- 1/4 of the NW- 1/4, Section 19, Township 9, Range 2 West, and also the SW- 1/4 of the SW- 1/4 of Section 18, Township 9, Range 2 West, said tract upon which said building is located containing 80 acres more or less.

"This lien is claimed, separately and severally, as to both the buildings and improvements thereon, and the said lands.

"That said lien is claimed to secure an indebtedness of One Hundred Nine and 81/100 Dollars ($109.81), with interest, from to-wit, the 21st day of September, 1935, for material and lumber furnished to erect said house heretofore described.

"The name of the owner or proprietor of said property is Gillie A. Gilbreath."

It is decided in this court that, where a lien is to be enforced on land to the extent of one acre, not in a city, town, or village, as here, the particular tract or acre on which the lien is sought to be charged and enforced must be specifically designated. This, in order that it may be separated from the adjacent lands composing the remainder of such tract not lying or being in a city, town, or village. Section 8832, Code. Such reasonable requirement is necessary that the parties in interest and the court be informed as to the particular tract of land affected by the improvement, and that it be sold pursuant to the statute obtaining. In the absence of such a description in the claim filed pursuant to statute, no lien attaches or may be enforced under the statute. Snellings Lumber Co. v. Porter, 225 Ala. 164, 142 So. 560; Gilbert v. Talladega Hardware Co., 195 Ala. 474, 70 So. 660.

It is further declared that, when a statutory lien is provided in derogation of the common law, it is looked upon with jealousy, is strictly construed, and there must be compliance in all matters of substance. This rule is necessary to protect the debtor and his property against unlawful expense, embarrassment, or impositions. 37 C.J. p. 309; Snellings Lumber Co. v. Porter, supra.

We have indicated that the averments of the bill and the claim filed show the land was not in a city, town, or village; that it is merely located in Cullman county, Ala., and on the 80-acre tract described by calls of government subdivisions.

The prayer of the bill is "that upon consideration of this cause by the court a decree be made and entered herein, giving the complainant a judgment for the amount sued for with interest thereon from the date of the maturity of said indebtedness and adjudging and decreeing a lien on the above described property and improvements in favor of the complainant for the amount of their (respondents) indebtedness; and that this court will further order and decree that in the event said indebtedness is not paid within a time to be fixed by decree of this court, that said property be sold by the register in compliance with the further orders of this court for the satisfaction of said indebtedness."

Thus the lien was sought to be decreed on "the building or improvement [is] situated [on] said one acre being a part of the NW- 1/4 of the NW- 1/4, Section 19, Township 9, Range 2 West, and also the SW- 1/4 of the SW- 1/4 of Section 18, Township 9, Range 2 West, said tract upon which said building is located containing 80 acres more or less." It will be noted that this lien is sought on the building and one acre of land, and not on the improvements, alone, as was the case in Wood Lumber Co. v. Greathouse, 230 Ala. 362, 363, 161 So. 236.

The question recurs: Was the description employed in the claim filed in the probate office, and that contained in the bill, a compliance with the statute (section 8836, Code) in the matter of substance, and within the decisions of this court? We think so. In Montgomery Iron Works v. Dorman, 78 Ala. 218, 220, 221, it was declared that "The purpose of the statute, in requiring the claim to be filed with the judge of probate, is to give notice to purchasers and creditors. For this purpose, the description of the property, on which the lien is claimed, is material. It should be sufficiently certain to designate the property to be charged. It is sufficient, if the description points out the premises, so that, by applying it, the land can be identified. The language of the statute is, 'a true description of the property, or so near as to identify the same.' Convenient and reasonable certainty is requisite. When the lien on the land is to the extent of one acre, and the tract of land contains more acres than one, the particular acre on which the lien is charged must be pointed out, and designated by a description sufficiently certain to identify and separate it from the balance of the tract. The same certainty of description is requisite as in case of a levy under execution, so that the court may be informed what land to order sold, and the purchaser be able to locate it. Without such description no lien is acquired.--Munger v. Green, 20 Ind. 38; Williams v. Porter, 51 Mo. 441; Tuttle v. Howe, 14 Minn. 145 (Gil. 113), 100 Am.Dec. 205. The same certainty of description in the complaint is requisite for the enforcement of the lien.--Phillips on Mec. Liens, § 378." This rule was adhered to in Turner v. Robbins, 78 Ala. 592, and in Robinson et al. v. Crotwell Brothers Lumber Company, 167 Ala. 566, 52 So. 733. To like effect is Bedsole v. Peters, 79 Ala. 133, wherein it was held that, while the lien claimed on the one acre expressly given by statute failed for uncertainty in description, it would be sustained, on the building, erection or improvement, it being described with reasonable certainty. 84 A.L.R. 133, note 1.

The statutes that now obtain are not materially different from those construed in the Montgomery Iron Works and Bedsole Cases, supra, as to description of lands not in a city, town or village. Section 8832 of the Code, providing that "Every mechanic, person, firm, or corporation who shall do or perform any work, *** or furnish any material *** for any building or improvement on land *** upon complying with the provisions of this article, shall have a lien therefor on such building or...