Sorsby v. Woodlawn Lumber Co.

• Decision Date: 16 January 1919
• Docket Number: 6 Div. 859
• Citation: 81 So. 68,202 Ala. 566
• Parties: SORSBY et al. v. WOODLAWN LUMBER CO.
• Court: Alabama Supreme Court

81 So. 68

202 Ala. 566

SORSBY et al. v. WOODLAWN LUMBER CO.

6 Div. 859

Supreme Court of Alabama

January 16, 1919

Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.

Bill by the Woodlawn Lumber Company against Mrs. I.K. Sorsby and others. Judgment for plaintiff, and certain defendants appeal. Reversed, rendered, and remanded.

James L. Cole, of Montevallo, for appellant Sorsby.

Sterling A. Wood, of Birmingham, for appellant King.

J.S Kennedy, of Birmingham, for appellee.

MAYFIELD J.

This appeal again presents the question as to whether or not this bill was filed in time against Mrs. I.K. Sorsby. The question was raised on the former appeal. See report of it in King v. Woodlawn Lumber Co., 78 So. 893. The question was not decided there, for the reason no relief was sought against Mrs. Sorsby. The bill has since been amended, so as to seek relief against her, even to the cancellation of her deed; so the question is now raised and must be decided.

Section 4777 of the Code is a statute of limitations as to suits to enforce liens under the statute. The original bill was filed in ample time, but the party holding the legal title to the property against which the lien is sought to be enforced was not made a party thereto until 2 years after the bill was filed, and no sufficient reason is shown for not sooner making her a party. It is true the original bill alleged that one of the respondents, one Wilson, was the owner of the property, and this allegation is yet in the bill as last amended; but it is there as a mere conclusion of the pleader which is not justified, but disproved, by the facts alleged.

The facts alleged show the legal title to be in Mrs. Sorsby, both as to the lot and the improvements thereon, as to which the lien is sought to be enforced. The facts in the bill as last amended show that the respondent King originally owned the lot, that he sold and deeded it to one Wilson, who mortgaged it back to King by the execution of two mortgages, and that King, on the same day that the legal title passed back to him by the mortgage, conveyed by absolute deed to Mrs. Sorsby, in whom the legal title resided when the bill was filed, and in whom it yet resides, so far as the bill shows.

It is true the bill alleges that the deed of King to Mrs. Sorsby was void, because Wilson was then in possession of the land holding it adversely to King and Mrs. Sorsby. This, however, is an unwarranted conclusion of the pleader. The possession of the mortgagor is not adverse to the mortgagee, in the sense to render the mortgage void, nor a deed by the mortgagee to a third party. It is true the deed would pass only the title of the mortgagee, but it would pass that, and that was the legal title, subject, however, to the equitable title of the mortgagor, which might include the right of possession. There is no doubt that a mortgagor in possession is the owner in such sense as that he can contract for improvements to be placed on the premises, and that under such contract by him, under our statutes, the mechanics and materialmen may acquire a lien on the premises, which may be enforced against the interest of both the mortgagor and mortgagee, or their assigns, who might be chargeable with notice thereof; yet the legal title is in the mortgagee or his assignee, and not in the mortgagor or the lienors. The mortgagor in possession before foreclosure is the owner or proprietor within the meaning of the statutes, and is thereby authorized to contract for buildings or repairs on the mortgaged premises.

He is not, however, in such case, the owner of the legal title, or the owner in such sense as to dispense with the necessity of having the legal title before the court in a bill to settle and enforce the liens, either upon the land or buildings erected thereon.

It may be, though we do not decide the question, that the lienor might proceed in a court of law or equity to have his lien declared and enforced in a suit against the mortgagor only, if he was the owner and had contracted for the improvement of the premises, and thus created the lien; but in such case he could enforce it against the mortgagor's interest only, and not that of the mortgagee. The mortgagee could not, of course, be bound by a proceeding to which he was not a party; in fact, the statute expressly so provides. Code, § 4766.

The lien the materialman or mechanic acquires is by virtue of the statutes only, and the requirements of the statutes as to acquiring and enforcing it must be pursued, else it is lost or does not exist. The lien is neither property nor is it a right in or to the property; it is neither a jus in re nor a jus ad rem. It is simply a right to charge the property which it affects with the payment of a particular debt. Porter v. Miles, 67 Ala. 130, 139.

If the lien should affect the property rights only of the mortgagor and not those of the mortgagee, then the mortgagee would not be a proper or necessary party. If however, it does affect the property rights of the mortgagee, then of course he is a proper party, and, if his rights are sought to be adjudged and foreclosed, he is a necessary party;...