Mathews v. Myers

• Citation: 145 S.E. 352
• Court: Supreme Court of Virginia
• Decision Date: 15 November 1928
• Parties: MATHEWS et al. v. MYERS et al.

145 S.E. 352

MATHEWS et al.

v.MYERS et al.

Supreme Court of Appeals of Virginia.

Nov. 15, 1928.

Appeal from Circuit Court, Alleghany County.

Proceeding by Mason Mathews and G. T. Thayer, trustees, for the determination of priority of deed of trust liens against property of the Dunlap Creek Lumber Corporation, opposed by J. W. Myers and others. From a decree in defendant's favor, modifying and confirming the report of a commissioner, plaintiffs appeal. Affirmed.

J. M. Perry, of Staunton, for appellants.

R. B. Stephenson and C. C. Collins, both of Covington, for appellees.

HOLT, J. On October 30, 1926, the plaintiffs sold to J. W. Myers, C. N. Scott, and C. J. Bollin the standing timber on a tract of land in Alleghany county, estimated to contain 5, 678 acres, which tract was made up of eight smaller tracts. The consideration therefor was $45,000, of which $10,000 was paid in cash and the remainder was evidenced by purchase-money notes, which fell due in installments, and which were secured by a trust deed to C. P. Barnett, trustee, of even date. Both of these deeds were promptly recorded.

In the deed of trust it was provided that the purchasers should have the right to cut and remove timber, and that they should pay therefor $5 per thousand feet, to be credited on the balance due on account of their purchase, and were to account therefor on or before the 10th of each month succeeding each operation, and that the right to operate should cease and determine whenever they were in default. These purchasers chartered an operating company, known as the Dunlap Creek Lumber Corporation. Their purchase was transferred to this corporation by a deed which was not recorded, and which appears to have been lost.

This corporation began work and cut something like 500, 000 feet of lumber, but failed to render any account of its transactions, or to make the payments which they called for.

These facts were set up in the bill in this cause, and in accordance with its prayer an injunction issued, a receiver was appointed, and a commissioner in chancery was directed to report liens and the order of their priority. This he did. These liens fall into three classes—labor liens, purchase-money still due, and certain other claims set up by attachment. The commissioner was of opinion that these labor liens constituted a first charge on this manufactured lumber.

Certain exceptions were filed, and on them the court entered this order:

"Upon consideration whereof the said exception, filed by A. L. Hoke et al., is overruled, and the exception No. 1, filed by Mathews and Thayer, trustees, be and is hereby overruled, and exception No. 2, filed by Mathews and Thayer, trustees, is sustained, and the court doth decide that in so far as said report of the said commissioner fails to give the said Mathews and Thayer, trustees, a lien of $5 per thousand board measure second in priority to the said lien creditors upon the manufactured lumber and logs, the same is erroneous, and in every other particular the said report is ratified, approved, and confirmed; and it appearing to the court from said report that the said Mathews and Thayer, trustees, have a first lien on the standing timber, it is adjudged, ordered, and decreed that said lien for the purchase money on said standing timber be and is hereby fixed and ascertained to the amount of the unpaid purchase money as ascertained in said report; and it further appearing from the said report that there is manufactured lumber and logs and other personal property which has been sold by the receiver in this cause, it is adjudged, ordered, and decreed that the labor lien creditors as ascertained in said report are entitled to a first lien on all of said manufactured lumber and logs and other personal estate, except as follows: * * *"

That part of the labor lien statute under construction is found in section 6438 of the Code, as amended by Acts of 1922, p. 13, which provides that laborers "shall have a prior lien on the franchises, gross earnings, and all the real and personal property of said company which is used in operating the same."

In the construction of a statute, it is of primary importance to remember its purpose.

Judge Burks, in Burks, Pl. & Pr. (2d Ed.), at section 430, said:

"A development of this common-law lien, by which the workman was permitted to retain pos-session of the chattel, which had been increased in value by his labor and material, has produced statutes providing for mechanics' liens in every state of the Union, in the provinces of Canada, and in the District of Columbia. If the workman was permitted to follow his labor and material into the chattel that he had created, or had given value to, why could not the workman and the materialman be permitted to follow his labor and...