Jefferson County Savings Bank v. Ben F. Barbour Plumbing & Electric Co.

Citation68 So. 43,191 Ala. 238
Decision Date04 February 1915
Docket Number850
CourtSupreme Court of Alabama
PartiesJEFFERSON COUNTY SAVINGS BANK v. BEN F. BARBOUR PLUMBING & ELECTRIC CO.

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

Bill by the Ben F. Barbour Plumbing & Electric Company against the Jefferson County Savings Bank to settle the priority of their respective liens and to subject to the payment of complainant's judgment or claim the increased value of the property by reason of the improvements added by complainant. From a decree overruling demurrers to the bill respondent appeals. Reversed, rendered, and remanded.

The case made by the bill is that Crampton made a contract with complainant prior to December 16, 1909, for work and labor to be done on the building then being prepared on said real estate, and for material and fixtures to be furnished by complainant for the improvement and repair thereof; that part of the work and labor and part of the material had been furnished and done on December 16, 1909, and that all the work was done and material furnished prior to March 8, 1910 on which day plaintiff filed a mechanic's lien in the office of the judge of probate of Jefferson county, Ala. It further appears from the bill that a judgment was rendered in favor of complainant and against Crampton on December 16 1911, by the circuit court of Jefferson county, Ala., for the amount due complainant for all the work and labor done and material furnished, and that a lien was declared in said judgment in favor of complainant for the amount of said judgment. It further appears that the lot and building were originally owned by Mrs. N. Legres, who mortgaged the same to Johnson in 1903. She sold to Crampton in 1909, and took a purchase-money mortgage at the date of the sale, and these mortgages were foreclosed and the property sold, which directly and by mesne conveyances were conveyed to respondent, the Jefferson County Savings Bank. This bill was not filed until October 16, 1913. It does not appear that either of the predecessors in title to Crampton were parties to the action against Crampton filed by complainant. The demurrers raise the questions decided in the opinion.

Forney Johnston, of Birmingham, for appellant.

Stallings Nesmith, Hunt & Judge, of Birmingham, for appellee.

SAYRE J.

Due consideration has been given the able brief filed for appellant, in which it is urged upon us that the majority opinion in Wimberly v. Mayberry, 94 Ala. 240, 10 So 157, 14 L.R.A. 305, is unsound in so far as it holds, as in very substance it does, that a mechanic or materialman who makes repairs upon mortgaged premises, without the knowledge or consent of the mortgagee or against his will, may come into equity and subject the entire property to his demand, precipitate a foreclosure, require a forced sale, and pay himself out of the proceeds, not indeed for the full price of the work done or the material furnished, but to the extent of the increased value of the property, where the repairs are so inseparably blended with improvements covered by the mortgage that they cannot be removed without mutilating the property and impairing the security of the mortgage. It would be hard to add anything to the gist of Chief Justice Stone's powerful dissent in that case; but counsel for appellant directs attention to these considerations as tending strongly to support his contention that the bill here should not be sustained under the statute as it now is. The prevailing opinion in Wimberly v. Mayberry, decided at the November term, 1891, reaching the conclusion that a prior lien under the statute fastened upon the entire property, land, and improvements, in the case of inseparably blended repairs, repeatedly refers to, and seems to lay great stress upon, the words "or repairs thereto," used in section 3019 of the Code of 1886, in which the Legislature undertook to prescribe the rule of priority as between the lien for material furnished or work done "on the building or improvement, or repairs thereto," and other liens, mortgages, and incumbrances prior and subsequent at the same time saying that "if the building or improvement is a separate, independent erection or structure, it may be sold under execution from a court of law and removed." When, shortly thereafter, this section was brought forward into the Code of 1896 (section 2724), the words "or repairs thereto" were omitted, and so the section has since stood. Our reported cases do not show that the significance and effect of this omission, or deliberate deletion, as we must assume it to have been, has ever been urged upon the court or had consideration here, and we might feel free to express, if necessary, an opinion upon appellant's stated contention as upon a new question. However, having reached a conclusion on another ground against the equity of appellee's bill, we have pretermitted any further consideration of the point to which we have alluded.

By the bill it appears that on March 8, 1910, appellee filed in the probate court its claim of lien against the lot and building of one Crampton for work done and material furnished prior to that date. It is shown by the bill that appellee's claim had accrued under a contract with Crampton "for work and labor to be done on the building then being repaired on said real estate *** and for materials and fixtures to be furnished by plaintiff [appellee] for the improvement and repair thereof." December 16, 1911, appellee recovered in the circuit court of Jefferson county judgment against Crampton alone, for the value of the work and materials furnished, declaring a lien under the statute and condemning "the lot and the improvements thereon" to its satisfaction. This judgment was recorded in the office of the probate judge on February 24, 1912. Prior to the date of this judgment appellant, as averred in the bill, had acquired interests in the property as follows: December 6, 1911, it had purchased at a foreclosure sale under a mortgage of date August 26, 1903; June 20, 1911, it took a deed from the purchaser at a foreclosure sale of a mortgage for purchase money of date July 19, 1909; September 26, 1911, it purchased at the foreclosure of another mortgage of date December 16 1909, assigned to it on January 14, 1910; August 5, 1911, it took from the lessor, Crampton, with the consent of the lesee, an assignment of a three-year term which Crampton on March 30, 1911, had let to one Ransom. It is not clear just what the averment on the subject of this lease means. But it is clear that the assignment, whether of the term or the rent reserved, was subject to the above-mentioned mortgages. The bill in this cause, praying a reference to ascertain the several amounts due on the various claims described in the bill, and to what extent the property had been increased in value by the work and labor done and material and fixtures furnished or repairs made by complainant, and a decree declaring and enforcing the relative rights and interests of the parties "in the buildings or improvements on the real estate described in the bill of complaint," and for general relief, was filed against appellant,...

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