Tanner v. Foley Bldg. & Mfg. Co.

• Decision Date: 16 November 1950
• Docket Number: 1 Div. 399
• Parties: TANNER v. FOLEY BLDG. & MFG. CO.
• Court: Alabama Supreme Court

Page 785

48 So.2d 785

254 Ala. 476

TANNER v. FOLEY BLDG. & MFG. CO.

1 Div. 399.

Supreme Court of Alabama.

Nov. 16, 1950.

Chason & Stone, of Bay Minette, for appellant.

J. B. Blackburn, of Bay Minette, and Forest A. Christian, of Foley, for appellee.

Bill in equity to enforce a mechanic's and materialman's lien against lands and improvements thereon by Foley Building & Manufacturing Company against Calla Mai Tanner. From a decree overruling a demurrer to the bill, respondent appeals.

Reversed, rendered and remanded.

The statement of lien, as to new cottages, stipulates as follows:

                "ON CONTRACT FOR
                   CONSTRUCTION OF TWO
                   NEW COTTAGES
                 Contract price, according to
                  specification                 $4,500.00
                 Added for additional work not
                  not called for in
                  specifications                 1,000.00
                                                ----------
                 Total amount due on cottages    5,500.00
                     Less amount paid on
                       cottages                  1,500.00
                                                ----------
                 Balance due on cottages        $4,000.00"
                

SIMPSON, Justice.

The amended bill seeks under one claim of lien to subject three and 44/100 acres of land and improvements thereon, not within a city, town or village, to a mechanic's and materialman's lien for work and labor done and materials furnished the defendant by the plaintiff under two separate contracts. The statement of lien is, 'That the said Foley Building & Manufacturing Co. claims a lien upon the following property, situated in Baldwin County, Alabama, to wit:' (describing by metes and bounds the three and 44/100 acres) and, 'This lien is claimed, separately and severally, as to both the buildings and improvements thereon.' Then follows an itemized statement of the account.

According to the averments of the bill there were two contracts for the improvement of the property, one for the repair and alteration of a dwelling house and two appurtenant cottages, a balance due on which is claimed to be $4,043.15, and a second contract executed the same month for the construction of two new cottages on the land, a balance due on which is alleged to be $4,000. The claim of lien filed in the probate office is too indefinite in describing the buildings on which the $4,043.15 is due, the only mention thereof being of a balance due 'on contract for repairs of house and cottages, $4,043.15'--how many or whether these were the only existing buildings does not appear. The statement of lien, however, as to the new cottages is specific and shows the total price with credits and the balance due.

The effort of the bill is to enforce both liens under the one statement of lien against the entire three and 44/100 acres of land, together with the alleged three repaired houses and the two new structures on the averment that: 'The three houses which were repaired by the Complainant for the Respondent and situated on the same tract of land and the two houses which were built by the Complainant for the Respondent and situated on the same tract of land * * * together with the electric wiring, sewer lines and water pipes, are so situated that they cover the entire tract of land which is under one fence, except for less than one acre thereof.'

Against apt grounds of demurrer that (1) the property was not sufficiently described, (2) that it is not permissible to enforce the two liens under one claim of lien, (3) that the bill was without equity, and (4) that it was multifarious, the trial court held the bill good, and this appeal challenges the correctness of those rulings.

Without dealing separately with the specific grounds of demurrer, we will state certain pertinent principles of law which will dispose of the propositions. The plaintiff could not under one lien subject more than one acre of land in addition to that upon which the building or improvement is situated, and this one acre must be definitely described. The unit of land subject to be condemned under one improvement lien, if located in the country, is 'one acre in addition to the land upon which the building or improvement is situated.' 'The purpose of the statute is to give the material-man [or mechanic] a lien on the lot, or acre of land [now enlarged to cover one acre in addition to the land on which the improvement rests], for the value of materials supplied [or labor etc. furnished] by him which have been applied and used on that land, in the erection [or repair etc.] of buildings, or other improvements thereon, and also on such building or improvement there situated; and the terms of the enactment are not only apt in the expression of this purpose, but equally so to the exclusion of anything beyond it.' Eufaula Water Co. v. Addyston Pipe & Steel Co., 89 Ala. 552, 558, 8 So. 25, 26; Code 1940, Title 33, §§ 37, 45.

Thus the enforceability of a mechanic's or materialman's lien on the land must be restricted to one lot or parcel of land if in a city, town or village, enlarged to cover contiguous or adjacent lots if the improvement is 'erected under one general contract', § 45, supra; Bennett Realty Co. v. Isbell, 219 Ala. 318, 122 So. 337, or if in the country to the unit designated in the statute, viz., one acre in addition to the land on which the building or improvement is situated. The unit of land subject to lien in the case in hand is, therefore, the 'one acre' plus the land on which the improvement rests. §§ 37, 45, Code, supra; Polakow v. General Roofing & Supply Co., 242 Ala. 497, 498, 7 So.2d 73; Eufaula Water Co. v. Addyston Pipe & Steel Co., supra.

The law is further very...