Leftwich Lumber Co. v. Florence Mut. Bldg., Loan & Savings Ass'n

• Decision Date: 15 November 1894
• Parties: LEFTWICH LUMBER CO. ET AL. v. FLORENCE MUTUAL BUILDING, LOAN & SAVINGS ASS'N.
• Court: Alabama Supreme Court

18 So. 48

104 Ala. 584

LEFTWICH LUMBER CO. ET AL. v. FLORENCE MUTUAL BUILDING, LOAN & SAVINGS ASS'N.

Supreme Court of Alabama

November 15, 1894

Appeal from chancery court, Lauderdale county; Thomas Cobbs, Judge.

Bill by the Florence Mutual Building, Loan & Savings Association against the Leftwich Lumber Company and others to have a mortgage lien declared superior to mechanics' and material men's liens. From a decree for plaintiff defendants appeal. Reversed.

On the 29th day of April, 1889, T. J. Ross executed to the Florence Mutual Building, Loan & Savings Association a mortgage on a certain lot in the town of Florence, Ala., to secure a loan made to him by said association of $900. On June 8, 1889, he executed a second mortgage on the same property to the said association to secure an additional loan of $750 made by the association to his wife; and on September 16, 1889, he executed a third mortgage to the said association on the same property to secure an additional loan of $900 to one F. S Mallory. The note which was given to evidence the first of these indebtedness was signed by said T. J. Ross; the note for the second loan was signed by Alice E. Ross, T. J. Ross expressing thereon his written consent for his wife to execute said note; and the note for the third loan was signed by F. S. Mallory and T. J. Ross and wife. The evidence of Ross shows that the money was borrowed for the purpose of building a house on the lot conveyed in the mortgage, and was so used. The mortgage executed on April 29, 1889, was recorded on May 1, 1889, and $400 of the borrowed money was on that day paid over to the said T. J. Ross. Ross contracted with Alligor & Golightly to build the house on said lot on April 20, 1889; but the exact date of the commencement of the building under said contract was a disputed question, and the evidence in reference thereto was in direct conflict. The facts in reference to the filing of the claims of mechanics' and material men's liens by Alligor &amp Golightly, the Leftwich Lumber Company, from whom much of the material used in the construction of said house was obtained and by William Willer, from whom other material was obtained, are sufficiently stated in the opinion. On March 8, 1890, a consent judgment was entered in the circuit court of Lauderdale in favor of the Leftwich Lumber Company for $962.92, being the amount of the order referred to in the opinion, and an attorney's fee of $75, stipulated, for in the note mentioned, given to the Leftwich Lumber Company. This judgment established the lien sought to be obtained by the suit, and also contained an order staying the issue of an execution thereon for 60 days. The purpose and prayer of the bill are also stated in the opinion. The priority of the mortgages executed to the complainant, the Florence Mutual Building, Loan & Savings Association, is asserted in the bill, both on account of the priority as to the time of the execution of said mortgages, and for alleged irregularities in the lien claimed by the material men, and also on account of alleged defects in the judgment and decrees. The alleged defects in the judgment and in the foundation of the lien, by which the bill claims that the judgment is void, may be thus summarized: (1) That the statement for the lien, filed in the office of the judge of probate, did not contain a just and true account of the demand which was alleged to constitute the line on the building and lot; (2) that no itemized statement of the account was filed in the statement for the lien; (3) that neither the contract, nor any of its items, for the building of the house between Alligor & Golightly, the contractors, and Ross, the owner, were set forth in the said statement of the lien; (4) that the statement of the lien is not verified by a person having personal knowledge of the facts, and as the statute directs and prescribes; (5) the judgment enforcing the lien embraces an attorney's fee, which was included in the note made by Ross to the Leftwich Lumber Company; (6) the judgment contains a stay of execution for 60 days; (7) J. B. Leftwich, who verified the statement for the lien filed in the probate office, did not have personal knowledge of the facts stated in said statement; (8) the Leftwich Lumber Company waived and relinquished whatever lien they may have had by taking the note from Ross, and by judgment thereon. Such other facts as are necessary for a full understanding of the questions decided on this appeal are sufficiently stated in the opinion. On the final submission of the cause, on the pleadings and proof, the chancellor decreed that the complainant was entitled to the relief prayed for. The respondents prosecute the present appeal, and assign this final decree as error.

Thos. R. Roulhac and Paul Hodges, for appellants.

Simpson & Jones, for appellee.

McCLELLAN J.

This bill is filed by the Florence Mutual Building, Loan & Savings Association against the Leftwich Lumber Company, Alligor &amp Golightly, William Willer, T. J. Ross, Alice E. Ross, and F. S. Mallory. Its purpose is to have three certain mortgages,-two of which were executed by T. J. Ross and Alice E. Ross, and the third by Ross and wife and said Mallory,-covering a lot in the town of Florence, declared a first lien thereon as against asserted mechanics' and material men's liens of the several other defendants; to enjoin judgments which the lumber company and Alligor & Golightly had obtained against Ross, who was the owner of the lot, with condemnation of the lot to their satisfaction; to enjoin a decree in chancery obtained by Willer against Ross for the enforcement of his alleged material man's lien; and to have the premises sold for the satisfaction of said mortgages in priority to all of said alleged liens. The question of chief importance in the case is as to whether the several mechanics' and material men's liens relied on by the respondents were perfected by appropriate proceedings in the probate court, and became valid charges upon the property in the hands of the several parties who now assert them. In determining this question, the judgments obtained by the lumber company and Alligor & Golightly, respectively, and the decree rendered in favor of Willer, declaring their claims to be such liens, and condemning the property to their satisfaction, are not to be taken into account, since the complainant was not a party to those actions, and is not bound by the results reached in them. 15 Am. & Eng. Enc. Law, p. 165; Young v. Stoutz, 74 Ala. 574. The facts necessary to be stated in respect of the claim of the lumber company are the following: T. J. Ross, the owner of the lot, entered into a contract with Alligor & Golightly to build a house thereon. When the house was completed, there was a balance due the builders of about $1,250. They owed the Leftwich Lumber Company $863.69 for lumber used in the building, and for this sum they gave the lumber company an order on Ross, which the latter accepted. Ross subsequently executed a note at 30 days to the lumber company for $500 of this amount. No part of this $863.69 was ever paid to the lumber company, and on February 10, 1890, within the statutory period, the lumber company filed a statement in the office of the judge of probate claiming a "lien on the lot in question, and upon the building situated thereon, to secure the payment of eight hundred and sixty-three dollars and sixty-nine cents ($863.69), being the amount due and admitted to be due Alligor & Golightly, the original contractors, for said building, on their contract, after deducting all just credits, according to a just and true account thereof, hereto attached and marked Exhibits A., B., and C., which said amount was on the 4th day of September, 1889, assigned by said Alligor & Golightly to said lumber company, and they were thereby invested with all the rights of said Alligor & Golightly." The statement further avers that "T. J. Ross, of Florence, Ala., is the owner of said premises"; and is signed "Leftwich Lumber Co., per J. B. Leftwich, Gen. M'g'r Leftwich Lumber Co." And it is verified by said J. B. Leftwich, who swears "that he has personal knowledge of the matters and things stated in the foregoing statement, and that they are true to the best of his knowledge and belief." The exhibits to this statement are: (A) The order of Alligor & Golightly on Ross to pay the lumber company $863.69, "due them for all material they furnished for your house on Ironside street," etc., with direction to charge the same to the account of "the drawers"; (B) Ross' note for $500 of the amount of the order; and (C) this account: "T. J. Ross, with Leftwich Lumber Co., Sept. 14th, 1889. To amt. assigned by Alligor & Golightly, $863.69."

Several objections are made to the sufficiency of this statement to perfect a lien upon the house and lot in question, under section 3022 of the Code. It is said that neither the statement itself nor the facts aliunde show that the lumber company was the assignee of Alligor & Golightly's lien. We cannot concur in this position. It is not disputed that there was an efficacious assignment by Alligor & Golightly of a part of their claim against Ross, for which a lien existed in their favor, Ross himself having assented to the assignment. And it is provided by our statute that "any claim for which a lien is provided in this chapter [creating liens in favor of mechanics and material...