Wood Lumber Co. v. Greathouse
| Decision Date | 09 May 1935 |
| Docket Number | 6 Div. 625 |
| Citation | 161 So. 236,230 Ala. 362 |
| Parties | WOOD LUMBER CO. v. GREATHOUSE et al. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Jefferson County; Wm. M. Walker, Judge.
Bill to enforce a materialman's lien by the Wood Lumber Company against J.O. Greathouse, J.I. Harden, and C.J. Donald. From a decree as against respondent Greathouse, but denying a lien upon the improvements, complainant appeals.
Reversed and remanded.
London Yancey, Smith & Windham and Al. G. Rives, all of Birmingham for appellant.
B.F Smith, of Birmingham, for appellees.
This is the second appeal in this case; the first appeal being reported as Wood Lumber Co. v. Greathouse et al., 226 Ala. 644, 148 So. 125.
The judgment on the second trial was that of a personal judgment against Greathouse, as lessee in possession or the purchaser to whom the materials were furnished and by whom employed in making the improvements on the land.
The bill was filed under sections 8834 and 8835 of the Code, to declare and enforce a materialman's lien against the improvements made on the leased land. These improvements were erected by respondent Greathouse, a lessee in possession, and respondents Harden and Donald were the lessors. It was contemplated by the terms of the lease that the improvements in question be made, and, therefore, were not made in violation of the terms of the lease sales contract in evidence.
It is clearly indicated by complainant's counsel in his pleadings, that no lien was sought on the land, but only upon the improvements in question, and judgment was sought for the amount of $968.16, with inter est from January 21, 1929, being the amount alleged to have been due on the purchase price of the materials and supplies purchased by Greathouse from the complainant and actually used in making the improvements; and complainant further prayed that a lien be declared on said improvements to such extent.
Respondents Harden and Donald did not file a cross-bill, sought no affirmative relief, and averred a lack of knowledge that the complainant had furnished the materials so used, and that since the improvements had been made they had never acknowledged the indebtedness to the complainant for which the lien was sought.
The testimony of Mr. Rives, as attorney for the complainant, shows the perfection of the lien as required by statute, section 8836, Code; the due bringing of the suit to perfect and enforce the lien; that lis pendens notice was filed and recorded in the probate court and was in evidence.
Mr. Wood, as president of the complainant, and Mr. Greathouse, as a witness, offered testimony showing that complainant furnished all of the bricks, tiles, and sand (except one and one-half yards furnished by Lasseter Lumber Company); the lumber consisting of sills, girders, and floor joists, sheathing, brick mould, and grounds in kinds and amounts indicated for this house and two other houses for the same parties.
Greathouse testified as to quantities, character, and market or contract prices of the materials furnished, and that at the time the improvements were completed the lot had a value of $2,000 and the improvements...
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