Sturdavant v. First Ave. Coal & Lumber Co.

• Decision Date: 02 May 1929
• Docket Number: 6 Div. 260.
• Citation: 219 Ala. 303,122 So. 178
• Court: Alabama Supreme Court
• Parties: STURDAVANT ET AL. v. FIRST AVE. COAL & LUMBER CO.

122 So. 178

219 Ala. 303

STURDAVANT ET AL. v. FIRST AVE. COAL & LUMBER CO.

6 Div. 260.

Supreme Court of Alabama

May 2, 1929

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Suit in equity by the First Avenue Coal & Lumber Company against S A. Sturdavant and others. Decree for complainant and the parties certify agreed questions of law under Code 1923, § 6090. Affirmed.

Howze &amp Brown, of Birmingham, for appellant.

Horace C. Wilkinson, of Birmingham, for appellee.

THOMAS J.

The question for decision is that of agreed question of law under section 6090, Code of 1923.

The question presented is that for enforcement of the materialman's lien by virtue of a contract with the owner or proprietor of a building for improvements on lands, under the statute. Section 8832, Code.

The statute provides three alternatives for lien: (1) When material furnished or labor done by virtue of contract with the owner or his agent; (2) when due notice is given that material will be furnished or labor done, and the owner on receiving notice fails to give notice that he will not be responsible; (3) when notice is given to subject the unpaid balance in the hands of the owner or proprietor. Section 8840, Code of 1923. Richardson Lumber Co. v. Howell, 122 So. 343; Avondale Lbr. Co. v. Hudson, 214 Ala. 128, 106 So. 803; Thornton v. Vines, 213 Ala. 646, 106 So. 42. The lien is based on contract, express or implied, to pay for such improvements made on real property, or there must be an effectual ratification of such contract. Richardson v. Little, 209 Ala. 351, 96 So. 144. A valid contract of purchase is the prerequisite, and the materialman must establish the same with the owner or proprietor, or his agent, as those terms are employed in the statute. First Colored Church v. Wood Lumber Co., 205 Ala. 442, 88 So. 433.

The words "owner or proprietor," as used in the statute, section 8832, refer to the time of the contract and execution thereof when the material, etc., went into the building or improvement. In the instant case the contracting owners were Rimer and Vickery, who so obtained the material employed in erecting the building upon the land. In a former appeal, as to some of the lots in the instant plot or block, it was declared that substantial work, conspicuous in character as the improvements progress upon the lot, was sufficient notice within the time of the statute to warn all who dealt with such real property of the rights of the materialmen, and that a conveyance made within the statutory period would be subject to such lien, if perfected. Grimsley v. First Ave. Coal & Lbr. Co., 217 Ala. 159, 115 So. 90.

The agreed facts show that, when appellee filed his notice of lien, March 13, 1926, and two days thereafter sought to enforce his lien by suit, Rimer and Vickery were the contracting owners of the property. The Mortgage Bond Company of New York as first mortgagee and A. M. Grimsley as second mortgagee were made parties defendant; and that at the time of this suit complainants did not have actual notice or knowledge of the fact that on October 12, 1925, Rimer and Vickery-the owners of the land-had conveyed to S. A. Sturdavant, the conveyance not being recorded until December 4, 1926, or "actual knowledge or actual notice of the fact that" the possession was delivered to such purchasers. When the cause was to be heard on March 4, 1927, it was brought to the attention of complainant that Sturdavant was in possession and claimed the property by virtue of said deed, and there was amendment of the bill by complainant on February 21, 1928, "by making S. A. Sturdavant a party respondent and praying in said bill that its lien be declared superior to any right or title of the said Sturdavant in said property.

"On the hearing of this cause the court rendered a decree fixing a lien on this property for the sum of $2,123.53 which was the amount of the debt and interest to date of trial, a copy of which decree the clerk will attach to this statement of facts."

As affecting the rights of the complainant to the lien of the statute, Rimer and Vickery, not the Mortgage Bond Company or Grimsley, were the owners of the property subject to and within the contract meaning of that statute; and they were proper parties to the suit to perfect the lien against them or either of them. As to complainant's superior lien to each of said parties, or either of them, the necessary defendants were before the court as the "owners or proprietors" of the land. Grimsley v. First Ave. Coal & Lbr. Co., 217 Ala. 159, 115 So. 90; Jackson v. Farley, 212 Ala. 594, 103 So. 882; Hughes v. Torgerson, 96 Ala. 346, 349, 11 So. 209, 16 L. R. A. 600, 38 Am. St. Rep. 105; Roman v. Thorn, 83 Ala. 443, 3 So. 759; Sorsby v. Woodlawn L. Co., 202 Ala. 566, 81 So. 68; Oglethorpe Sav. & Trust Co. v. Morgan, 149 Ga. 787, 102 S.E. 528; Carswell v. Patzowski, 4 Pennewill (Del.) 403, 55 A. 342, 1013; Fourth Ave. Baptist Church v. Schreiner, 88 Pa. 124; Jones v. Shawhan, 4 Watts. & S. (Pa.) 257; McCoy v. Quick, 30 Wis. 521; Colley v. Doughty, 62 Me. 562. And the trial court was not in error in the rendition of the decree that complainant's liens on the land and building thereon are superior to any right, title, claim or interest in or to said property, in favor of the Mortgage Bond Company or the second mortgage of A. M. Grimsley.

The right of superior lien of complainant to S. A. Sturdavant requires that we consider other provisions of the statute as to the perfection and enforcement of said lien by suit. Had Sturdavant been made a party defendant when the bill was filed or within the period of statute for bringing suit, after the accrual of complainant's lien, his rights would have been concluded under the statute by foregoing considerations.

It is established that the lien is neither the property nor a right in or to the property; it is merely the statutory right to charge the property which it affects with the payment of a particular debt. And, if duly insisted upon by suit to judgment, may have satisfaction by sale of the property, if necessary. That is to say, the right to lien

and satisfaction is inchoate until perfected "by the rendition of a judgment in rem, in the mode pointed out by the statute and in substantial compliance with its requirements." Sorsby v. Woodlawn Lbr. Co., 202 Ala. 566, 81 So. 68; Cocciola v. Wood-Dickerson Sup. Co., 136 Ala. 532, 33 So. 856; Long v. Pocahontas Coal Co., 117 Ala. 587, 23 So. 526; McConnell v. Meridian Sash & Blind Factory, 112 Ala. 582, 20 So. 929; Wadsworth v. Hodge, 88 Ala. 500, 505, 7 So. 194; Porter v. Miles, 67 Ala. 130.

What then are the statutory requirements as to the bringing of suit in which the instant judgment in rem may be rendered as affecting subsequent conveyances by the contracting owner or proprietor who thus procured the building or improvements upon the land? A phase of this question was touched in Grimsley v. First Ave. Coal & Lbr. Co., 217 Ala. 159, 115 So. 90.

The provision of the statute declaratory of due process is found in section 8844, Code, to the effect that in such actions persons interested in the matter in controversy or in the property charged with the lien, not made parties, shall not be bound by the judgment rendered or judicial proceedings had. Jefferson County Sav. Bank v. Ben F. Barbour Plumbing & Electric Co., 191 Ala. 238, 244, 68 So. 43. The amendment making Sturdavant a defendant, under the general rule of relation to the beginning of the suit, would have met the requirements of due process and of amendments, had there been no specific statute of limitation. The general rule of amendment and relation back to the filing of the suit without working an entire change of parties is to be found in Ala. Ter. & Imp. Co. v. Hall & Farley, Trustees, 152 Ala. 262, 44 So. 592.

The real difficulty is presented by the amendment, after expiration of six months from maturity of complainant's indebtedness, as to the defendant Sturdavant, the grantee from the original contract owner. The statute declares, except as provided, that all liens under article 1, c. 314, § 8855, Code, "shall be deemed lost, unless suit for the enforcement thereof is commenced within six months after the maturity of the entire indebtedness secured thereby." The requirement of suit within the limited time from accrual of claim or filing of lien was introduced by section 15 of the Act of March 6, 1876 (Acts 1875-76, p. 169), and given appropriate place in the several Codes, with different periods within which suit may be or required to be instituted, and, as a "limitation" on such right to the remedy provided by the statute, has been considered by this court. Seibs v. Engelhardt, 78 Ala. 508; Jefferson County Sav. Bank v. Barbour P. & E. Co., 191 Ala. 238, 68 So. 43; Jefferson P. & M. Sup. Co. v. Peebles, 195 Ala. 608, 71 So. 413; Hughes v. Torgerson, 96 Ala. 346, 11 So. 209, 16 L. R. A. 600, 38 Am. St. Rep. 105; Sorsby v. Woodlawn Lbr. Co., 202 Ala. 566, 81 So. 68.

In Pilcher v. E. R. Porter Co., 208 Ala. 202, 94 So 72, the land improved was subject to prior mortgage and the lien on the land was subordinate to prior incumbrance. It was, however, superior thereto on the building or structure added to the land; the lien had been established at law against the owner and against the building, within the time required by statute; after expiration of six months from maturity of indebtedness a suit in equity was upheld to determine priorities between such lienor and the prior incumbrances on the land, though the latter suit was not commenced within six months after maturity of the debt, the basis of the lien; that is, bills in equity "necessary to determine priority between mechanic's lien and mortgagee" are not...