Roberts v. Lindsey

• Decision Date: 19 March 1942
• Docket Number: 8 Div. 144.
• Parties: ROBERTS et al. v. LINDSEY.
• Court: Alabama Supreme Court

7 So.2d 82

242 Ala. 522

ROBERTS et al. v. LINDSEY.

8 Div. 144.

Supreme Court of Alabama

March 19, 1942

Rehearing Denied April 9, 1942.

Perdue & Miller, of Moulton, for appellants.

S.A Lynne, of Decatur, for appellee.

LIVINGSTON Justice.

Appeal from a decree of the Circuit Court of Lawrence County, in equity, overruling demurrers to a bill of complaint seeking to establish and foreclose a lien on a filling station building.

The bill alleges, in substance, that on March 13 1935, the appellee, complainant in the court below, entered into a written contract whereby appellants, respondents in the court below leased to appellee a certain lot or parcel of land described in the bill, for a term of five years commencing on March 13, 1935: that in and by the lease contract it was agreed that appellee should erect a filling station building on the lot, and that appellants would pay the cost of erection: that title to the building should vest in the appellants at the expiration of the lease contract, subject to the payment of the cost and expenses of its erection, and for which payment appellee was to have a lien. The bill alleges that the building was erected by appellee in pursuance of and in compliance with the contract, at a cost of five hundred dollars; that the lease has expired, and that although repeated demands have been made for the payment of the cost of erection of the filling station building, the same remains unpaid.

The bill prayed that the court determine the amount due appellee for the erection of the building; that the court fix, fasten and confirm the lien on said filling station building for the amount ascertained to be due appellee by appellants, and that the building be ordered sold for the purpose of paying off and satisfying the lien, and for general relief,--a copy of the lease contract was attached to and made a part of the bill of complaint.

The demurrers to the bill take the points that (1) there is no equity in the bill; (2) that the contract is void for uncertainty; and (3) that the contract is void for want of consideration.

The pertinent provisions of the contract are as follows: "Now party of second part J.R. Lindsey hereby agrees to erect a filling station building on the above described property, and parties of first part agrees that party of second part is to hold a lien on the building for any indebtedness or cost of erection of the building till paid in full at the expiration of the lease the building is to go to party of first part."

The equity of appellees' bill rests upon the averment of facts to establish an equitable lien and its prayer to enforce it.

In the case of Greil Brothers Co. v. City of Montgomery, 182 Ala. 291, 62 So. 692, 695, Ann.Cas.1915D, 738, this Court said: "Equitable liens as distinguished from legal liens, of course stand upon a different ground. The rule in such cases is well stated by Mr. Freeman in a note to the case of Aldine [Mfg. Co.] v. Phillips, [118 Mich. 162, 76 N.W. 371, 42 L.R.A. 531], 74 Am.St.Rep. [380], 387, as follows: 'An equitable lien arises either from a written contract which shows an intention to charge some particular property with a debt or obligation, or is implied and declared by a court of equity out of general considerations of right and justice as applied to the relations of the parties and the circumstances of their dealings. It is settled beyond question that a court of equity is the appropriate tribunal for the enforcement of an equitable, as distinguished from a statutory or common-law, lien. Vallette v. Whitewater Valley Canal Co., (Fed.Cas. No. 16,820), 4 McLean 192; Ridgely v. Iglehart, 3 Bland (Md.) 540; Holly Mfg. Co. v. New Chester Water Co. (C.C.) 48 F. 879; Walker v. Casgrain, 101 Mich. 604, (60 N.W. 291); * * * Buchan v. Sumner, 2 Barb.Ch. (N.Y.) 165, 47 Am.Dec. 305. "In equity there is no difficulty in enforcing a lien or any other equitable claim constituting a charge in rem, not only against real estate, but upon personal estate, or upon money in the hands of a third person, whenever the lien or other claim is a matter of agreement against the party himself and his personal representatives, and against every person claiming under him, voluntarily or with notice. Every such agreement for a lien or charge in rem constitutes a trust, and is accordingly governed by the general doctrine applicable to trusts." Fletcher v. Morey, (Fed.Cas. No. 4,864), 2 Story 555, 565.' "

And quoting from Manchuria S.S. Co. v. Harry G.G. Donald & Co., 200 Ala. 638 (head note 5), 77 So. 12, 15, "We may say that though an instrument provides no method of enforcing or foreclosing a lien secured thereby, a court of equity exercising original jurisdiction has power to protect and foreclose such lien. Boyett v. Hahn, et al. , 73 So. 79." See, also, Harden et al. v. Wood Lumber Co., 235 Ala. 310, 313, 178 So. 540.

Such a lien as herein appears is regarded as in the nature of an equitable mortgage. City of Eufaula v. Alabama Power Co., 233 Ala. 257, 171 So. 368.

While the contract is not couched in the language of an experienced hand, since it has been performed on the part...