Meek v. Parker

• Decision Date: 16 January 1897
• Citation: 38 S.W. 900,63 Ark. 367
• Parties: MEEK v. PARKER
• Court: Arkansas Supreme Court

38 S.W. 900

63 Ark. 367

MEEK v. PARKER

Supreme Court of Arkansas

January 16, 1897

Appeal from Bradley Circuit Court, MARCUS L. HAWKINS, Judge.

STATEMENT BY THE COURT.

This action was brought by Parker & Waters against the Carpenter Lumber Company. The plaintiffs seek to establish a lien upon land of said company for the value of materials furnished and repairs done for and upon buildings and improvements thereon. The property upon which it is claimed that the lien exists consists of two separate tracts of land, over a mile apart. One tract, of an acre and a half, upon which is located a planer and other improvements, is owned by said lumber company. The company held the other tract, of ten acres under a lease for a term of years, and had located upon it a saw mill, boiler, engine, dry kiln, etc. The lumber company made no defense, but the appellant, J. R. B. Meek, as trustee for the Merchants & Planters Bank of Warren, Arkansas, was upon his own motion, made a party defendant, and filed an answer. He claimed title by virtue of a deed of trust executed by said lumber company, conveying the property in question to him, as trustee to secure certain indebtedness due from said company to the bank. lie denied that plaintiffs had any lien upon said property, as claimed by them. The trust deed under which Meek claimed the property was executed after the materials had been furnished and repairs done by plaintiffs. The finding and judgment was in favor of plaintiffs.

Judgment reversed for new trial.

Wells & Williamson for appellant.

Section 4731, Sand. & H. Dig., refers solely to fixtures or improvements upon land--real property. It has no reference to personal property, the lien on which is prescribed by sec 4766. The entire saw mill outfit was personal property, being located temporarily on land held by lease. 56 Ark. 52. Even conceding the saw mills, engines and boilers to be fixtures, yet the belting, wrenches and dry kiln wheels and boxes are not attached, nor realty nor fixtures, so as to bring them within the act. They are mere tools and implements.

2. There was nothing done at the time the affidavit was made. The note paid the account. 32 Ark. 733; 45 id. 313; 46 id. 552; 48 id. 267.

Z. T. Wood for appellee.

The word "improvement" is broad enough to include even wrenches. See 1 Bouvier, p. 613. The dry kiln wheels and boxes were a part of the dry kilns, and the latter could not be operated without them. The note was not accepted as payment, nor was the account merged. 48 Ark. 267. The note not having been paid, the rights of appellees existed as before the indorsement, and their lien related back. 32 Ark. 59; 56 id. 640; 52 Ark. 58.

OPINION

RIDDICK, J., (after stating the facts).

The only question here is whether, under the facts proved, the plaintiffs are entitled to a lien. If they have a lien, it is not disputed that it takes precedence of the debt secured by the trust deed. The lien claimed by the plaintiffs was for work and materials furnished for improvements upon two separate tracts of lands. It is not alleged or shown that the materials for the separate improvements were furnished under an entire contract. But the court adjudged that the aggregate amount claimed by plaintiffs was a lien upon both tracts of land, and ordered them sold, with the improvements thereon, to pay said debt. The materials furnished for the improvement of one tract of land did not create a lien upon the other tract, when the same were not furnished under an entire contract. It is obvious therefore that the judgment is, to that extent, erroneous.

Among the materials furnished for which a lien is claimed were two steel wrenches, fifty feet of rubber belting, also certain "dry kiln wheels and boxes." It is contended that these articles were not "materials, machinery or fixtures furnished for any building, erection or other improvement upon land," within the meaning of our statute. The wrenches were not in any way attached to the real estate, nor were they a necessary part of the machinery thus attached. They were only personal property, having no connection with the real estate, and for the price of which no lien attaches thereto. So far as the evidence goes, the same thing may be said of the rubber belting. It is true, there is an itemized account filed, upon which the price of this belting is charged; but there is nothing in the evidence to show that it was furnished for any "building, erection or other improvement upon land, or that it was attached to the land, building, or machinery in any way." There is therefore no evidence to sustain a lien for the price of the same.

Were plaintiffs entitled to a lien for the value of the "dry kiln wheels and boxes furnished by them?" Our statute provides that every person who shall "furnish any materials, machinery, or fixtures for any building, erection, or other improvement upon land, * * * * under or by virtue of any contract expressed or implied with the owner or proprietor thereof, * * * * shall have for his materials, machinery, or fixtures furnished a lien upon such building, erection, or improvement, and upon the land belonging to such owner or proprietor on which the same is situated, to secure the payment of such materials, machinery, or fixtures furnished." Sand. & H. Dig., § 4731.

This statute was not intended to give a lien upon personal property. To entitle the material man to a lien under this statute, the material or machinery furnished must as a rule be attached to or become a part of the improvement or building upon land, or must be used in making such improvement. But the testimony shows that these dry kiln wheels and boxes were designed and built expressly for use in the dry kiln of the lumber company. This dry kiln was a long shed boarded up on both sides and covered over the top. It had a wooden tramway running through it from one end to the other, upon which these wheels were fitted and made to run. Each pair of wheels were connected by an iron axle. By placing a load of lumber upon two of these axles supported by wheels, it could be pushed along the tramway into the dry kiln, and, after the lumber became dried, it could be pushed along the tramway to the end of the kiln, from which point it was hauled away in wagons. This dry kiln was constructed especially for the use of these wheels, and could not be used without them, unless one of the sides of the dry kiln was first removed, or in other words without altering its structure. The testimony does not...