Parsons v. Foster

• Decision Date: 13 May 1929
• Docket Number: 27639
• Citation: 154 Miss. 363,122 So. 387
• Court: Mississippi Supreme Court
• Parties: PARSONS v. FOSTER et al

122 So. 387

154 Miss. 363

PARSONS v. FOSTER et al

No. 27639

Supreme Court of Mississippi

May 13, 1929

Division A

1. MECHANICS' LIENS. Holder of deed of trust was necessary party to proceedings to establish and enforce mechanic's lien; "person having interest in controversy" (Hemingway's Code 1927, sections 2585, 2587).

Holder of recorded deed of trust constituting a prior and superior lien on land, and also a lien on house erected thereon with money advanced for that purpose, was a "person having an interest in the controversy," within meaning of Code 1906, section 3063 (Hemingway's Code 1927, section 2585) and as such a necessary party to proceedings to establish and enforce mechanic's lien on property with consequent opportunity to avail himself of right under Code 1906 section 3065 (Hemingway's Code 1927, section 2587), to make any defense, and also counterclaim against plaintiff touching subject-matter of suit.

2. MECHANICS' LIENS. Holder of deed of trust could enjoin sale under judgment in proceeding to enforce mechanic's lien to which he was not made party.

Holder of deed of trust constituting prior and superior lien on land, and also a lien on house erected thereon with money advanced for that purpose, could enjoin sale of property to satisfy mechanic's lien pursuant to judgment in proceeding to which he was not a party, since, though sale under special execution would not divest him of title, it would nevertheless cast a doubt, cloud, and suspicion thereon, and uncertain state of title would probably materially effect sale value in any proceeding to foreclose deed of trust so as to result in irreparable injury.

Suggestion of Error Overruled July 15, 1929.

APPEAL from chancery court of Hinds county, First district.

HON. V. J. STRICKER, Chancellor.

Suit by C. H. Parsons against O. C. Foster and others. Decree of dismissal, and complainant appeals. Reversed and remanded.

Decree reversed, and demurrer overruled, injunction reinstated, and cause remanded.

D. C. Enochs, of Jackson, for appellant.

The proceeding by the defendant mechanics to enforce their alleged lien is void as to the appellant, because he was not made a party thereto.

Case Manufacturing Co. v. Smith et al., 40 F. 339, 5 L. R. A. 231; Continental & Commercial Trust & Saving Bank et al. v. Corey Bros. Const. Co. et al., 208 F. 976; Portues v. Badenoch et al., 132 Ill. 377, 23 N.E. 349; Grier v. Puterbaugh, 108 Ill. 602; Worden v. Crist, 106 Ill. 326; Whitezelle v. Texas Loan Co. (Tex. Civ. App.), 27 S.W. 308; Buntyn v. Shippers Compress Co. et al., 63 Miss. 94.

The special execution was void.

Section 2428, Hem. 1917 Code; Section 3068, Code 1906; Wilson v. Reuter, 29 Ia. 176; Sly v. Pattee, 58 N.H. 102; O'Brien v. Gooding, 194 Ill. 466; Farley Bros. v. Cammann, 43 Mo.App. 168.

The procedure by bill in equity by appellant was proper, for want of an adequate remedy at law, and the injunction proper, to avoid a cloud upon the right, title and interest of the appellant, and irreparable injury and damage to him, and further, because a court of equity can better settle equities than any other court, and an injunction preserves the status quo, and avoids injury and damage, pending the establishment of the equities.

Richardson v. Brooks, 52 Miss. 118; Livingston's Exrs. v. Livingston, 4 Johns. Ch. (N. Y.) 290, (8 Am. Dec. 562); Boyce v. Grundy, 3 Peters (U.S.) 215, 7 L.Ed. 655; Barnes v. Lloyd, 1 How. 584; City of Natchez v. Vandervelde, 2 George 706, 66 Am. Dec. 581; Roth v. Insley, 86 Cal. 134; Sharpe v. Tatnall, 5 Del. Ch. 302; Budd v. Long, 13 Fla. 288; Christie v. Hale, 46 Ill. 117; Jarvis v. White, 7 Ves. 415; First National Bank of Kingstown v. Deitch, 83 Ind. 131; Stevens v. Mulligan, 167 Mass. 84; Kimberly v. Sells, 3 Johns Ch. 467, 471; 2 Am. Law Reg. (N. S.) 732; Moody v. Harper, 38 Miss. 599; Freeman v. Ammons et al., 91 Miss. 672; Erhardt v. Boaro, 113 U.S. 537, 5 S.Ct. 565, 28 Law. Ed. 1116.

Franklin, Easterling & Canizaro and Robertson & Campbell, all of Jackson, for appellees.

Persons who claim the land adversely to those with whom the mechanics or materialmen made their contract are not parties to the suit to enforce the lien as their interest will not be affected and cannot be adjudicated.

Falconer v. Fraser, 7 S. & M. 235; English v. Foote, 8 S. & M. 444; Land v. Murhead, 31 Miss. 89.

Looking to all the statutes upon proceedings to enforce mechanic's lien and construing them together, it is apparent that the legislative intent was that the party making the contract or owning the land should be one kind of a party and the holders of any other lien against the same property by virtue of this Chapter shall be made parties to the suit. It was not the intent or purpose of the legislature that adverse claimants to the land should be made parties.

If appellant is a concurrent lienor his interest would not be affected by this sale.

If he is the holder of a superior lien his rights would not be affected. Under no theory could appellant's rights be affected.

If appellant has a superior lien he is not affected by the proceedings at all, if he has but a junior lien against the building, then appellant is not a necessary or a proper party.

Priebatsch v. Third Baptist Church, 66 Miss. 345, 6 So. 237.

If the judgment and execution thereunder were void, no injunction would have been necessary.

There is a complete, adequate and full remedy at law.

Chapter 45 of Hemingway's Code of 1927.

The remedy for the enforcement of liens of mechanics and materialmen is equitable in its nature. The statutory scheme contemplates a solution of all questions in each case and full remedy is contemplated by the law.

Section 2587, Hemingway's Code of 1927; Big Three Lumber Co. v. Curtis, 93 So. 488; Hopkins v. Swan, 50 Miss. 545; Lott v. Mitchell, 16 So. 794.

If a bill shows on its face that there is a full, complete and adequate remedy at law and there being no equitable grounds averred, the injunction will be dissolved.

Pollard v. Phalin, 98 Miss. 155, 53 So. 453; Ricks v. Richardson, 70 Miss. 424, 11 So. 936; Newman v. Taylor, 69 Miss. 670, 13 So. 831; Sunflower Compress Co. v. Staple Cooperative Association, 139 Miss. 200, 103 So. 802.

Appellant may not attack the judgment of the justice court except for fraud.

Bell v. Cooper, 20 Miss. 650; Bates v. Strickland, 103 So. 432, 139 Miss. 636; Federal Reserve Bank v. Wall, 103 So. 5, 138 Miss. 204; Willsford v. Meyer-Kiser Co., 104 So. 293, 139 Miss. 387; Larson v. Larson, 82 Miss. 116, 33 So. 717; International Harvester v. Still, 53 So. 394; Pollard v. Phalen, 53 So. 483; Edward Hines Yellow Pine Trustees v. Knox, 108 So. 907; Scranton Lumber Co. v. Knox, 109 So. 721.

OPINION

COOK, J.

The appellant, C. H. Parsons, filed a bill of complaint in the chancery court of the First district of Hinds county, seeking to enjoin the sale, under an execution, of a certain house located on lot 22 of block C of the Howie-Roell resurvey of the Millsaps College addition to the city of Jackson, Miss. A temporary injunction was issued, and thereafter the defendants appeared and filed a demurrer to the bill of complaint, and a motion to dissolve the injunction upon the bill and demurrer. Upon the hearing of the cause, the demurrer and motion to dissolve were sustained, and, the appellant thereupon declining to plead further, a final decree dismissing the bill of complaint was entered, and from this decree this appeal was prosecuted.

The bill of complaint, as finally amended, charged that one Roy McLain was, on December 17, 1927, the owner of an unimproved lot in the city of Jackson, described as lot 22, block C, of the Howie-Roell resurvey of the Millsaps College addition, of the value of eight hundred dollars, and that, desiring to improve the same, he procured the appellant's consent to advance to him money and material for that purpose to the amount of five thousand dollars, on the condition that the said McLain would secure the payment of same by a deed of trust upon the property; that on said date the said McLain executed and delivered to him such deed of trust, wherein it was recited that "this is a first deed of trust and lien upon said lot, except a lien for street improvements, and is given, as well as the note secured thereby, for advances of money and material to be made to me by said Parsons for the erection of improvements upon said lot;" that this deed of trust was filed for record in the office of the chancery clerk of Hinds county on December 19, 1927, before the erection of any improvement on said lot was begun, and long before the defendant mechanics began work upon such improvements, or were employed to do so; and that under the said deed of trust the appellant had advanced to said McLain money and material for, and that was used in, the construction of improvements on said lot, amounting to the five thousand dollars, before he learned that the defendant mechanics claimed that they had not been paid for their labor on said improvement, and claimed a lien therefor on said property.

The bill of complaint further charged that on February 27, 1928 the defendant mechanics instituted a suit against the said McLain in a justice of the peace court to establish and enforce an alleged mechanic's statutory lien upon said lot and the building erected thereon for the money alleged to be due them for labor performed in the erection of said building, to which suit the appellant was not a party; that on March 14, 1928, a judgment was rendered in favor of said defendants, fixing a lien upon said lot and building, and condemning the same for sale to satisfy the said judgment; that on April 6, 1928, a general and special execution was issued on said judgment by the said...