Wimberly v. Mayberry

• Decision Date: 25 November 1891
• Citation: 94 Ala. 240,10 So. 157
• Parties: WIMBERLY v. MAYBERRY ET AL.
• Court: Alabama Supreme Court

10 So. 157

94 Ala. 240

WIMBERLY v. MAYBERRY ET AL.

Supreme Court of Alabama

November 25, 1891

Appeal from city court of Birmingham; W. W. WILKERSON, Judge. Reversed.

Action by H. H. Mayberry and others against T. P. Wimberly to enforce a mechanic's lien for materials furnished and labor performed. Plaintiffs had judgment, and defendant appeals.

Garrett & Underwood, for appellant.

Cabaniss & Weakley, for appellees.

COLEMAN J.

The agreed facts, as we construe them, are substantially as follows: On the 26th day of October, 1889, one R. M. Mulford being then the owner in fee of a lot and dwelling and other improvements thereon in the city of Birmingham, obtained a loan of $4,000 from T. P. Wimberly, and secured the same by a mortgage of the lot, dwelling, and improvements, and, as a further security, the mortgage provided that the dwelling should be insured for the benefit of the mortgagee. The mortgage was regularly acknowledged and recorded. Before the 2d day of June, 1890, the dwelling was partly destroyed by fire, and from the policy of insurance $2,664 was realized. By agreement between Wimberly, the mortgagee, and Mulford the mortgagor, Mulford was permitted to use the insurance money in rebuilding his dwelling; it being expressly agreed that the new building should stand in the place of the burned dwelling, and be subject to the mortgage in the same manner. Mulford expended the insurance money without completing the dwelling, and, without the consent or knowledge of his mortgagee, incurred the indebtedness sued upon, for its completion. Complainants Mayberry and others, whose claims aggregate about $600, filed their bill to enforce a lien for material furnished for the completion of the building. The city court granted relief to the complainants, holding that their lien for materials extended to the entire building and was superior and prior to that of the mortgage. The decree of the court is assigned as error.

Section 3018, Code, declares that every mechanic or other person who shall do or perform any work or labor upon, or furnish any material, fixtures, *** for, any building or improvements upon land, or for repairing the same, *** shall have a lien therefor on such building or improvement, and on the land on which the same is situated, to the extent in ownership of all the right, title, and interest owned therein by such owner or proprietor, etc. The lien for repairs, by this section, is as extensive as that given for materials or fixtures furnished for the building or improvement. Section 3019 of the Code, fixing the priority of liens, declares: "Such lien 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, or repairs thereto; 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." The terms "building or improvement," as here used, are not necessarily synonymous, and have a different signification from "repairs thereto," although repairs ordinarily may be an improvement. The term "building" refers to an independent erection upon the land. An improvement may be an independent structure or addition, and it may be an addition to or mere betterment of a building or improvement already made, and not included in "repairs thereto."

The statute contemplates different conditions of the realty at the time of the commencement of work by the mechanic, or when the materials are furnished, or repairs thereto are made: First, when there is no lien or incumbrance upon the land at the time the building or improvement or repairs are commenced; second, when there is a lien upon the land, and other and independent buildings or improvements are subsequently commenced; third, when there is a lien upon the land, and building or improvements thereon, and further improvements or repairs are subsequently commenced. The word "land," as used in sections 3018 and 3019, has its common-law meaning, and includes all buildings or improvements on the land at the time of the commencement of the work, or when materials are furnished. Under the first condition, by virtue of section 3018 of the Code, a lien is given upon the building or improvement and land, not only for the work done and materials furnished, but for repairs made; and, by section 3019 of the Code, this lien has preference over all subsequent liens or mortgages. The lien may be enforced, if necessary, by a sale of the entire property. Under the second condition, for the erection of an independent building or improvement, a mechanic's or material-man's lien is given upon the building or improvement, which is declared to be superior to any existing lien upon the land. The statute provides that this lien may be enforced by a sale of the building or improvement, and, if necessary, the purchaser has authority to remove it from the land. The other condition is when there is a lien for an improvement, which is a mere betterment of a building or improvement, or when there is a lien for "repairs thereto," upon which there is an existing mortgage or lien, before or at the time the improvements or repairs are commenced. The statute as clearly declares the lien for an improvement which is a mere addition or betterment of a building or improvement, or for repairs thereto, as it does upon a building or improvement wholly erected; and it is the duty of the courts to protect and enforce the lien as far as it can be done legally, and without interfering with vested interests or impairing the obligation of contracts.

To determine the respective rights of the holders of the different liens in the cases last enumerated is the question presented by the record for adjudication. Section 3019, supra, fixing the priority of the liens, uses the term "such lien." The lien given to which the words "such lien" refer, and its extent, is declared and defined in the previous section, 3018, in the following words: "Shall have alien therefor on such building or improvement, and on the land on which the same is situated, to the extent in ownership of all the right, title, and interest owned therein by such owner or proprietor." The italics are ours. "Such lien," the priority of which is fixed, and provision for its enforcement made in section 3019, is limited by section 3018 to the right, title, and interest of the owner or proprietor in the "building or improvement, and the land on which the same is situated." This must necessarily be correct; otherwise the owner of a life-estate in a block of buildings, by a contract for improvements or repairs, might have all the buildings sold and removed from the premises, to the entire destruction of the property of the remainder-man; or a vendee, who retains the vendor's lien, might be improved out of his security, without fault or neglect on his part. Under this view, the question arises, what operation will be given to that part of section 3019 which provides, "as to the building or improvement, it shall have priority over all other liens," etc.? The lien can have no force beyond its extent, and its extent is upon the whole building or improvement, except as declared and limited by section 3018. There are many conditions in which the lien can be enforced by a sale of the buildings or improvements, as provided in the statutes, and without injury to any creditor or owner of the land or remainder interest. To have a proper understanding of the statute, the two sections must be construed together, and with reference to the existing law intended to be changed, and the protection to mechanics and material-men intended by the statute. At common law, a mortgage or lien upon land carried with it not only the buildings or improvements erected thereon at the time, but all subsequent buildings, improvements, or repairs thereto, merged into the realty, and became subject to the mortgage, and this is the law now, except so far as changed by statute or agreement of parties. The lien of mechanic or material-men is purely statutory, and its operation and extent is defined and limited by statute. Copeland v. Kehoe, 67 Ala. 597.

There was no injustice or injury in giving to mechanics and material-men a prior lien upon buildings or improvements wholly erected by them against existing mortgages or liens or in declaring a prior lien upon the land as against the mortgages and liens subsequently obtained. As against a prior mortgage or incumbrance of the land, the equity and policy of the statute which secures the mechanic's and material-man's lien rest upon the principle that no injustice is done in preventing the holder of the older lien from appropriating the labor and material of others, by which his security is enhanced, without compensation. It would be inequitable to hold that a mechanic or material-man can appropriate, as compensation for his labor and material, the estate of an innocent prior mortgagee; or, as was forcibly stated in Welch v. Porter, 63 Ala. 232, "to hold that a subsequent contractor or material-man could acquire a lien which would take precedence over an intervening incumbrance *** would shock the moral sense of the profession, and fail to carry out the intention of the legislature." The purpose of the act was to intervene in favor of the mechanic or material-man, and secure to him a paramount lien upon what he put upon the land in the way of "buildings or improvements or repairs thereto," and prevent the operation of the common law, which, without the act, would give an existing mortgage or lien a priority over it. The property improved in such cases merges into the realty, but subject to the mechanic's lien...