Pilcher v. E.R. Porter Co.

• Decision Date: 15 June 1922
• Docket Number: 4 Div. 946.
• Citation: 208 Ala. 202,94 So. 72
• Parties: PILCHER v. E. R. PORTER CO. ET AL.
• Court: Alabama Supreme Court

94 So. 72

208 Ala. 202

PILCHER v. E. R. PORTER CO. ET AL.

4 Div. 946.

Supreme Court of Alabama

June 15, 1922

Rehearing Denied Oct. 12, 1922.

Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.

Suit by Mrs. T. T. Pilcher against the E. R. Porter Company and others, to enjoin a sale of land to enforce the payment of liens. From a decree overruling demurrers to a cross-bill complainant appeals. Affirmed.

Sollie & Sollie, of Ozark, for appellant.

Farmer Merrill & Farmer, of Dothan, for appellees.

SOMERVILLE J.

With respect to the relative rights of lienors and prior mortgagees, under sections 4754 and 4755 of the Code declaring and defining the liens of mechanics and materialmen, and the remedies for their enforcement, the following propositions seem to be clearly settled by our decisions:

1. Where a new building or structure is erected on land which is already subject to a mortgage or other incumbrance, as to the land, the lien is subordinate to the prior incumbrance, but, as to the building or structure, the lien is superior to such incumbrance; the theory being that, so far as the lienor is concerned, the building or structure does not become a part of the land, is not affected by any prior incumbrance on the land, and "may be sold and removed without affecting the mortgage security." Turner v. Robbins, 78 Ala. 592, 595; Wimberly v. Mayberry, 94 Ala. 240, 10 So. 157, 14 L. R. A. 205; Vesuvius Lbr. Co. v. Ala., etc., Co., 203 Ala. 93, 95, 82 So. 107.

2. In such a case, the enforcement of the lien already seasonably established in an action at law or otherwise, though the prior incumbrancer were not made a party thereto, against such building or structure, by a bill in equity, which does not seek the subjection thereto of any property, land or improvements, which was originally covered by the mortgage, but merely the determination of priorities between the lienor and the prior incumbrancer of the land as to the added improvement, and its separation from the land, is not such a suit for the enforcement of the lien as, under section 4777 of the Code must be commenced "within six months after the maturity of the entire indebtedness secured thereby." Vesuvius Lbr. Co. v. Ala., etc., Co., 203 Ala. 93, 82 So. 107; Id., 204 Ala. 439, 85 So. 709; Jefferson County Sav. Bk. v. Ben F. Barbour Co., 191 Ala. 238, 247, 68 So. 43.

3. The principles just above stated are not affected in any way by the circumstance that the action at law for the enforcement of the lien, and the judgment thereon, is against the entire property of the defendant, both the land and improvement (Vesuvius Lbr. Co. v. Ala., etc., Co., supra; B'ham B. & L. Ass'n v. May, etc., Co., 99 Ala. 276, 13 So. 612), nor by the fact that either the mortgage or the statutory lien has been foreclosed, and the property bought in at the sale (Vesuvius Lbr. Co. v. Ala., etc., Co., supra; B'ham B. & L. Ass'n v. May, etc., Co., supra; Wimberly v. Mayberry, supra; Magnolia Land Co. v. Malone Inv. Co., 202 Ala. 157, 158, 79 So. 641). This assumes, of course, that the lienor, in the one case, or the mortgagee, in the other, was not made a party to the suit or foreclosure proceeding.

4. But, "where the improvement is a mere betterment, or where repairs are made, upon a building or improvement upon which there is a valid lien, and the owner has only a qualified right, it would be unjust and inequitable in many cases *** to enforce the lien and give it priority on the entire building or improvement"; and hence "the mortgagee's lien is superior and prior as to the property covered by the mortgage before the mechanic's or materialman's lien attached, and subordinate to the lien given to the mechanic or materialman, for what he added; and so the lien of the mechanic or materialman is upon the whole property, but subordinate to the mortgage as to the property covered by the mortgage when his lien attached." Wimberly v. Mayberry, supra, 94 Ala. 248, 249, 10 So. 160 (14 L. R. A. 205); Jefferson Co. Sav. Bk. v. Ben F. Barbour, etc., Co., supra.

5. Where the statutory lien is of the character just above stated, its priority "cannot be adjusted and protected in a court of law," but is a matter of equitable jurisdiction exclusively. Wimberly v. Mayberry, supra; Jefferson County Sav. Bk. v. Ben F. Barbour, etc., Co., supra.

6. In such a case, the suit being a primary proceeding for the establishment of a lien upon the property of the mortgagee -property to which his mortgage attached in its inception, and upon which he relied as security for its satisfaction-and affecting his interests by a premature and compulsory foreclosure of his claim if the security has been enhanced in value, it is held to be such a suit as the statute (Code, § 4777) requires to be commenced "within six months after the maturity of the entire indebtedness secured thereby." Jefferson County Sav. Bk. v. Ben F. Barbour Co., supra; Vesuvius Lbr. Co. v. Ala., etc., Co., supra.

The foregoing principles and distinctions have been clearly enunciated, and must be regarded as settled. The point of difference between counsel for the respective parties in interest is, as we understand it, not with respect to the principles above reviewed, but as to their application to the facts of this case.

The original bill of complaint, in the sixth paragraph, alleges that W. C. Pilcher, the original owner and mortgagor, "borrowed money from Damon and the Pilchers, and used it in erecting the buildings which are on the lands in question, and that, after said buildings and improvements had been practically completed, appellees began to advance to W. C. Pilcher materials to be used in finishing up or fitting out said buildings theretofore erected on said lands, and which in part were used in and about finishing up said buildings."

The answer and cross-bill contains the following statement:

"In answer to the sixth paragraph of the bill respondents and each of them separately and severally say that they admit that during the early part and prior to the 2d day of July, 1914, the said W. G. Pilcher began

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