Grimsley v. First Ave. Coal & Lumber Co., 6 Div. 854

• Court: Supreme Court of Alabama
• Writing for the Court: THOMAS, J. THOMAS, J.
• Citation: 115 So. 90,217 Ala. 159
• Docket Number: 6 Div. 854
• Decision Date: 26 May 1927
• Parties: GRIMSLEY v. FIRST AVE. COAL & LUMBER CO.

115 So. 90

217 Ala. 159

GRIMSLEY
v.
FIRST AVE. COAL & LUMBER CO.

6 Div. 854

Supreme Court of Alabama

May 26, 1927

Rehearing Denied Jan. 12, 1928

Appeal from Circuit Court, Jefferson County; William M. Walker, Judge.

Bill to enforce a materialman's lien by the First Avenue Coal & Lumber Company against A.M. Grimsley and others. From a decree overruling a demurrer to the bill as amended, the named respondent appeals. Affirmed. [115 So. 91]

Fort, Burton & Jones, of Birmingham, for appellant.

Horace C. Wilkinson, of Birmingham, for appellee.

THOMAS, J.

The appeal is from a decree overruling demurrer to the bill as last amended. The bill was filed to enforce a materialman's lien. Sections 8832, 8842, Code of 1923.

The bill and its exhibit, with the usual leave of reference, constitute the pleading of complainant, and demurrer directed thereto will be so referred and tested. The exhibit attached to the bill when treated as a part thereof on demurrer in proper circumstances aids and supplements the bill. Hogan v. Scott, 186 Ala. 310, 65 So. 209; Clements v. Clements, 200 Ala. 529, 76 So. 855; Pool v. Menefee, 205 Ala. 531, 88 So. 654; Piedmont Co. v. Piedmont Foundry & Mach. Co., 96 Ala. 389, 11 So. 332; Conoly v. Harrell, 182 Ala. 243, 62 So. 511; Minter v. Branch Bank at Mobile, 23 Ala. 762, 58 Am.Dec. 315. The pleading when so considered together shows the complainant had a contract with, and that the materials were furnished to and debt incurred by contract with, the owner or proprietor of the property improved therewith (section 8832, Code), and the bill was not subject to the grounds of demurrer directed to this phase of that pleading ( Birmingham Building & Loan Ass'n v. Boggs, 116 Ala. 587, 22 So. 852, 67 Am.St.Rep. 147).

The averment that the lien is sought to be enforced upon the several lots specifically indicated as being in a city, town, or village, indicated and described as "contiguous or adjacent," is in the language of the statute and is sufficient. Section 8839, Code 1923. Contiguous means "in actual contact"; also, "near, though not in contact; neighboring; adjoining." Adjacent means "lying near, close, or contiguous; neighboring; bordering on," etc. Webster's New Int. Dict., p. 486, Latest Authentic Edition. Here no contradiction or repugnance or uncertainty in said pleading that is subject to grounds of demurrer directed thereto is presented.

Appellant challenges the bill as to the averment that the owner and proprietor of the lots improved, "sold," or "conveyed" specific lots subsequent to the commencement of the work on said building or improvement, and there is no unequivocal averment that such purchaser had notice of the existence of the lien. It cannot be said that one may purchase a newly constructed house before the time provided for the perfecting of the material and mechanics' liens thereon had [115 So. 92] expired, and defeat the purpose of the statute. It is immaterial whether such a sale was bona fide or fraudulent, the property is subject to the lien when perfected and enforced as provided by the statute.

And the fact that the work was in progress is notice to all who dealt with said property or contracted therefor with its owner that the right under the statute exists, and sales or conveyances made within the time prescribed by the statute would be subject to the right. The declared priorities of section 8833 of the Code have not the effect of permitting a sale or conveyance by deed within the period of the statute that would defeat the mechanics' and materialmen's liens given by section 8832 of the Code. If something is done of a 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 v. Farley, 212 Ala. 594, 103 So. 882; 40 C.J. 292) that is notice relating to commencement of the work.

In Rockel on Mechanics' Liens, at page 393, § 150, it is said:

"The fact that the work is in progress (Soule v Dawes, 7 Cal. 575; Austin v. Wohler, 5 Ill.App 300) is a notice to all of the rights of the mechanic, and all conveyances made during that time are made subject to the mechanic's rights (White v. Chaffin, 32 Ark 59; Fleming v. Bumgarner, 29 Ind. 424; D.L Billings Co. v. Brand, 187 Mass. 417, 73 N.E. 637; Dodge v. Hall, 168 Mass. 435, 47 N.E. 110; Hammond v. Darlington, 109 Mo.App. 333, 84 S.W. 446; Bates Mach. Co. v. Trenton, etc., R. Co., 70 N.J.Law, 684, 58 A. 935 [103 Am.St.Rep. 811]; Gordon v. Torrey, 15 N.J.Eq. 112, 82 Am.Dec. 273; Sinclair v. Fitch, 3 E.D. Smith [N.Y.] 677). It is immaterial whether the sale was fraudulent (Jefferson v. Hopson Bros., 84 S.W. 540, 27 Ky.Law Rep. 140), or bona fide the property is subject to the lien that may thereafter be perfected within the time limited by statute (Reynolds v. Manhattan Trust Co., 83 F. 593, 27 C.C.A. 620)."

In this jurisdiction it is declared that the mechanic's lien attaches and has priority over mortgages and other incumbrances given or recorded and attaching after the building or improvement was commenced. Jackson v. Farley, 212 Ala. 594, 103 So. 882; First Ave. Coal & Lumber Co. v. King, 193 Ala. 438, 69 So. 549; Welch v. Porter, 63 Ala. 225. And it is established that as against mortgages and trust deeds a mechanic's lien takes precedence according to the time when it attached to the property in its improvement. Leftwich Lumber Co. v. Florence Mutual Building, Loan & Savings Ass'n, 104 Ala. 584, 18 So. 48; Welch v. Porter, 63 Ala. 225; Montandon & Co. v. Deas, 14 Ala. 33, 48...