Loyd v. Guthrie

• Decision Date: 05 June 1901
• Parties: LOYD v. GUTHRIE ET AL.
• Court: Alabama Supreme Court

31 So. 506

131 Ala. 65

LOYD v. GUTHRIE ET AL.

Supreme Court of Alabama

June 5, 1901

Appeal from chancery court, Morgan county; Wm. H. Simpson Chancellor.

Bill by N. B. Loyd against W. P. Guthrie and others for the enforcement of an alleged lien on premises. From a decree for defendants, plaintiff appeals. Affirmed.

Tyson J., dissenting.

Harris & Eyster, for appellant.

E. W Godbey, for appellees.

TYSON J.

In Donald v. Hewitt, 33 Ala. 534, 73 Am. Dec. 431, the contract provided that "Schnetz & Hewitt are to retain a special lien on said boat and engine until the notes are paid." It was contended that Schnetz & Hewitt had no lien by virtue of the contract. It was insisted in that case, as here, that the parties to the contract, in providing that they "are to retain a special lien," contemplated no other than the statutory lien which they had under the statutes of Kentucky. But the court said: "If this be so, the parties have done a vain and useless thing in bringing the subject of a lien into their contract. The language employed is appropriate to create a lien and to provide for its continuance. If the parties intended that the lien so held should exist by virtue of the statute of Kentucky, and not of the contract, they have not said so; nor have they said that which authorizes us to infer it. We give effect to the words of the contract, and allow a motive to the parties in the use of them, when we understand them as creating a lien; one to exist by virtue of, and to have effect determinable by, the contract." The court, proceeding, held that Schnetz &amp Hewitt had a lien by virtue of their contract, which could be enforced in equity against the owner of the boat and all other persons except innocent purchasers for value. The legal effect of the language of the contract quoted above, and which the court held created an equitable mortgage, cannot be differentiated upon principle from that employed in the contract in the case under consideration. Here, after reciting the consideration of the note to be for money, material, and labor furnished by complainant in the building of a storeroom on a designated lot, this language is employed: "And a mechanic's lien is held on this building to secure the payment of this note." If we substitute "special" for "mechanic's" and "retain" for "held" the language of the two contracts would be substantially the same. Does the slight difference in verbiage, which confessedly is quite shadowy, so materially differentiate the two as to justify the conclusion in the one that it created an equitable mortgage, and in the other that there was no intention to create a charge or trust upon the building? We think not. To so hold would be to give effect to a shadow, and not substance, resulting in the defeat of the intention of the parties as expressed in the note, and in rendering the provision in it under consideration inefficacious, or to nullify it. In such case it is the duty of the court to adopt that construction which will carry it into effect, and to this end, if necessary, the word "mechanic's" would be construed as descriptive of the payee named in the instrument, rather than the lien created by it; or, as was said by Lord Mansfield in Pugh v. Leeds, Cowp. 714, "The parties necessarily understood and used the language in that sense which made their deed effectual." A mechanic's lien is purely of statutory origin. "Its character, operation, and extent must be ascertained by the terms of the statute creating and defining it. While every lien of this kind has a contract as its foundation, it is created rather by the law than by the contract of the parties, is analogous to the vendor's lien for the purchase money of land, and is based on a like reason," etc. Osborn v. Wall Paper Co., 99 Ala. 309, 13 So. 776; Wadsworth v. Hodge, 88 Ala. 500, 7 So. 194. "The mere fact that work and labor are performed and materials furnished for the erection or repair of buildings, or for the construction of other improvements, will not give rise to the lien. The work and labor may be done and the materials furnished on the personal credit of the party contracting for them, and this is often true, and all that is intended. By the express words of the statute, the lien can come into existence only upon a compliance with its provisions. The first step which must be taken to create it is the filing in the office of the judge of probate of the county in which the property to be charged is situate a just and true account of the demand, after all just credits have been given, which must be verified by the oath of the claimant," etc. Chandler v. Hanna, 73 Ala. 393. In short, "its creation depends upon a compliance, in all matters of substance, with the provisions of the statute to which it owes its existence." Long v. Coal Co., 117 Ala. 587, 23 So. 526. Being statutory, and existing only by operation of law arising out of the relation of the parties upon a compliance with the terms of the statute, it can no more be raised by contract than a landlord's or vendor's lien. McDonald v. Land Co., 78 Ala. 382; Bankhead v. Owen, 60 Ala. 466; Hester v. Hunnicutt, 104 Ala. 282, 16 So. 162; 3 Brick. Dig. p. 613, § 47; Scheerer v. Agee, 106 Ala. 139, 17 So. 610; Hamilton v. Maas, 77 Ala. 283; Collins v. Whigham, 58 Ala. 438; Tucker v. Adams, 52...