Le Grand v. Hubbard

Decision Date05 May 1927
Docket Number3 Div. 723
Citation112 So. 826,216 Ala. 164
PartiesLE GRAND v. HUBBARD et al.
CourtAlabama Supreme Court

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Bill in equity by M.P. Le Grand against T.B. Hubbard and others. From a decree denying him relief, complainant appeals. Affirmed.

Rushton Crenshaw & Rushton, of Montgomery, for appellant.

Hill Hill, Whiting, Thomas & Rives, of Montgomery, for appellees.

BOULDIN J.

The only question involved in this appeal is the priority of liens as between a garnishing creditor of a contractor and materialmen furnishing materials to the contractor for the erection of a building. An admitted unpaid balance due from the owner to the contractor was paid into court. This fund is the subject-matter of the suit.

The decree was upon an agreed statement of facts. The materialmen took all required steps to perfect their liens under the mechanic's lien law. The lien of the garnishment attached prior to the giving of notice to the owner required of persons furnishing material or labor to the contractor. The materialmen were decreed priority in payment. Appellant contends, in effect, that the materialman's lien dates from the giving of such notice as against other liens or incumbrances.

Every person who shall do any work or furnish any material for any building or improvement on land, under or by virtue of any contract with the owner or his contractor, shall have a lien therefor on the building and on the land to the extent of the owner's interest therein--

"or, if employés of the contractor or persons furnishing material to him, the lien shall extend only to the amount of any unpaid balance due the contractor by the owner or proprietor, and such employés and materialmen shall also have a lien on such unpaid balance." Code, § 8832.
"Such lien, as to the land, shall have priority over all other liens, mortgages, or incumbrances created subsequently to the commencement of the work on the building or improvement; and, as to the building or improvement, it shall have priority over all other liens, mortgages, or incumbrances, whether existing at at the time of the commencement of such work, or subsequently created." Code, § 8833.

Thus section 8832 declares, in one and the same section, the lien, the extent of it, and the classes of persons entitled thereto. Section 8833 immediately follows, fixing priority as against other liens. "Such lien" refers back to the "lien" used in the singular throughout section 8832, and declared in favor of "every person" named in that section.

The natural and obvious intent of these sections is to give the lien of all persons the same priority as against liens of third persons.

We find nothing in the statutes, nor in the general policy expressed therein, denoting a purpose to discriminate against materialmen and laborers for the contractor in this regard.

Commencement of work on the building, a matter open to the observation of all, is fixed as the event and the time when third persons are charged with notice that, on compliance with the terms of the statute, liens will accrue against the building in favor of those whose labor and material bring it into being.

The provision of section 8832, limiting liens of this class to the unpaid balance due or to become due the contractor, and of section 8840, requiring notice in writing to the owner, "setting forth the amount thereof, for what, and from whom it is owing," are for the protection of the owner. After such notice any unpaid balance "shall be held subject to such lien," the lien declared in former sections. Until notice given, the lien remains inchoate or potential as a lien on specific property, as all liens declared remain inchoate until the required statement is filed in the office of the Judge of Probate.

"Unless such statement is so filed the lien shall be lost." Code, § 8836.
"All liens arising under this article, except in favor of the original contractor, shall stand on an equal footing, and be first paid out of the proceeds of the sale of the property, or money collected from the owner or proprietor; and if such proceeds and money are insufficient to satisfy such liens in full, the same shall be distributed pro rata among the holders thereof." Section 8854, Code 1923.

This section clearly negatives any idea that liens date from the giving of notice to the owner as between the lienholders. It will be readily seen this section cannot have effect if garnishment liens may intervene between the claimants under this section. Laborers, for example, cannot give notice until work is done and wages accrued.

The case of Leftwich Lumber Co. v. Florence Mutual Building & Loan Ass'n, 104 Ala. 584, 598, 18 So. 48, dealt with the priority of mortgage liens and the lien for materials furnished the contractor. The claimant took by assignment from the materialman. The priority was determined by the provisions of section 3019, Code of 1886, the same as section 8833, above quoted. That case is a direct authority here.

Appellant relies upon the authority of Dixie Lumber Co. v. Young, 203 Ala. 115, 82 So. 129. That case involved priority between a materialman of the contractor and an equitable assignee of the fund. The special equities in the case were that a bank furnished the contractor the money with which to construct the building, taking an order on the owner, which was recognized and paid by the owner as funds accrued to the contractor. The bank was treated as an equitable assignee of the fund, and as to an unpaid balance, was given preference over the materialman who had not given notice at the time the order became effective.

We are not now dealing with the rights of one who has, by act of the owner and contractor, become entitled to the money theretofore due the contractor. We would merely note that under section 8861 the assignee is "invested with all the rights of the original holder of the lien." This implies the...

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25 cases
  • Grimsley v. First Ave. Coal & Lumber Co.
    • United States
    • Alabama Supreme Court
    • 26 Mayo 1927
    ...substantial and conspicuous character to make it apparent to bona fide purchasers that the building has actually commenced (Le Grand v. Hubbard [Ala.Sup.] 112 So. 826; Welch v. Porter, 63 Ala. 231; Jackson Farley, 212 Ala. 594, 103 So. 882; 40 C.J. 292) that is notice relating to commenceme......
  • COVINGTON CTY. BANK v. RJ Allen & Associates
    • United States
    • U.S. District Court — Middle District of Alabama
    • 13 Mayo 1977
    ...protection of the owner. See Rayborn v. Housing Authority of Washington County, 276 Ala. 498, 164 So.2d 494 (1964); Le Grand v. Hubbard, 216 Ala. 164, 112 So. 826 (1927). Operation of the statute has meant that a materialman who failed to provide the required notice was left with nothing wh......
  • Starek v. TKW, Inc.
    • United States
    • Alabama Supreme Court
    • 19 Febrero 1982
    ...thereafter be perfected within the time limited by statute....' ".... "When a new house is constructed, as indicated in LeGrand v. Hubbard, 216 Ala. 164, 112 So. 826, it is notice to all the world, within the lien period, of the rights of the mechanic and materialman. It is actual and const......
  • Baker Sand & Gravel Co. v. Rogers Plumbing & Heating Co.
    • United States
    • Alabama Supreme Court
    • 29 Marzo 1934
    ... ... settled. Sections 8832, 8836, 8840, 8841, 8854, 8858 of the ... Code of 1923; Ex parte Schmidt & Smith, 62 Ala. 252; Le ... Grand v. Hubbard, 216 Ala. 164, 112 So. 826; ... Standard Sanitary Mfg. Co. v. Aird, 221 Ala. 520, ... 129 So. 285; David Lupton's Sons Const. Co. v ... ...
  • Request a trial to view additional results

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