Vesuvius Lumber Co. v. Alabama Fidelity Mortgage & Bond Co.

• Decision Date: 13 February 1919
• Docket Number: 3 Div. 373
• Citation: 203 Ala. 93,82 So. 107
• Court: Alabama Supreme Court
• Parties: VESUVIUS LUMBER CO. et al. v. ALABAMA FIDELITY MORTGAGE & BOND CO.

82 So. 107

203 Ala. 93

VESUVIUS LUMBER CO. et al. v. ALABAMA FIDELITY MORTGAGE & BOND CO.

3 Div. 373

Supreme Court of Alabama

February 13, 1919

Rehearing Denied May 22, 1919

Appeal from Circuit Court, Montgomery County; Gaston Gunter, Judge.

Bill by the Vesuvius Lumber Company and another against the Alabama Fidelity Mortgage & Bond Company and another. Named defendant's demurrer to bill sustained, and plaintiffs appeal. Reversed and remanded.

J. Lee Holloway and Stuart Mackenzie, both of Montgomery, for appellants.

John R Tyson, of Montgomery, for appellees.

SAYRE J.

Appellants Vesuvius Lumber Company and Montgomery Lime & Cement Company distinct and independent corporate bodies furnished to the College Court Realty Company, by contract with it, materials for the erection of buildings upon two separate lots owned by it. Afterwards appellants, proceeding severally and separately under the statute in such cases made and provided, recovered judgments for the purchase price of the materials so furnished, and by these judgments liens were declared on each of the lots in favor of each of the appellants for the price of the materials furnished by each of them to the improvement of each of the lots. The lots, so improved, were then exposed for sale under writs of venditioni exponas, issued for the satisfaction of appellants' judgments, and at such sales appellants purchased jointly. These lots, along with other property of the College Court Company, were subject to a prior mortgage held by Alabama Fidelity Mortgage & Bond Company, which mortgage was foreclosed under a power of sale after appellants had recovered judgments, but before the lots were sold thereunder. The Fidelity Company became the purchaser at the foreclosure sale, and in due course received conveyances of the lots. Appellants' bill, averring the facts summarized above, prayed that their liens be decreed to be prior and paramount to the lien and claim of the Fidelity Company, and that they be authorized and empowered to remove the buildings and improvements from the lots, and for general relief. The College Court Company was also made a party defendant, but it has raised no objection to the bill. The Fidelity Company's demurrer to the bill was sustained, after which this appeal.

Appellants rely upon Birmingham Building & Loan Ass'n v. May & Thomas Hardware Co., 99 Ala. 276, 13 So. 612. In that case, on a very similar state of facts, the court held that complainants were entitled to relief, and we have been unable to see why the authority of that case on the points to which the parties there invoked the court's decision should not be followed.

It is now said on behalf of appellee that the court, in Birmingham, etc., v. May & Thomas Co., supra, overlooked the provision of the statute (section 4755 of the Code) which permitted appellants to have a sale of the buildings or improvements and vested in the purchaser the right, within a reasonable time, to remove the same; and it is said that, with the right so conferred by the statute, there exists no need for the exercise of equity jurisdiction. But we think the court in that case observed and answered this objection to the bill when it noted the fact that the alleged prior incumbrancer was not a party to the judgment of the law court declaring a lien, and not concluded thereby, and held that the judgment lienor, having purchased at the sale in execution of his judgment, might file his bill to settle with the incumbrancer their respective priorities.

In the next place it is said that it appears from the facts alleged in the bill that the statements filed by appellants in the office of the judge of probate, as provided by section 4758 of the Code, did not contain a description of the building or improvement on which appellants claimed a lien, nor did they show the name of appellee as the owner thereof. The statements here referred to claimed liens upon the lots, describing them, and alleged that the College Court Company was the owner or proprietor thereof. No statement was made as to the buildings or improvements except that the liens claimed were for materials furnished for the buildings and improvements on the lots; nor was there any reference whatever to the Fidelity Company. The only mention made in the statute of mortgages, incumbrances, or other liens is found in section 4755, where it is provided:

"Such lien [of mechanic or materialman], as to the land, shall have priority over all other liens, mortgages, or incumbrances created subsequently to the commencement of the work on the building or improvement; and, as to the building or improvement, it shall have priority over all other liens, mortgages, or incumbrances, whether existing at the time of the commencement of such work, or subsequently created; and the person entitled to such lien may, when there is a prior lien, mortgage, or incumbrance on the land, have it enforced by a sale of the building or improvement under the provisions of this article, and the purchaser may, within a reasonable time thereafter, remove the same."

The statute does not require or contemplate that the names of the mortgagees, incumbrancers, or other lienors shall be shown by the statement filed with the judge of probate. Nor does it require that mortgagees incumbrancers, or other lienors shall be made parties to a proceeding under it for the enforcement of a mechanic's or materialman's lien. It is provided that all persons interested may be made parties; but such as are not shall not be bound by the judgment or proceedings. So evidently there was no need to mention appellee in the statement filed in the probate court. As for the description of the building or improvement, that was sufficiently set forth when the lot was described. Our judgment is that, even though appellants had a lien on the buildings only, that lien was not lost by reason...