Porter & Co. v. Miles , 67 Ala. 130 ( 1880 )

BRICKELL, C. J.

— The only instructions of the Circuit Court to the jury, to which exceptions were reserved, refer to the operation and effect of the judgment in favor of appellants against Bickford, as declaring and establishing a statutory lien because of materials furnished by appellants for the erection of the steam-mill, which would be prior in point of time, and, of consequence, superior in right, to the lien of the execution in favor of the Gulf City Foundry Company, at a sale under which the appellee became the purchaser of the chattels. We shall not enter on the inquiry, whether a statutory lien can be acquired on chattels, which will follow them when dissevered from the freehold, or from the buildings, erections, or improvements, into which they may have been introduced. If it is conceded that such a lien may be acquired, it is by force of the statute only; and to its creation, preservation, and enforcement, a strict compliance with the statute is essential. The lien is not property, or a right in or to property : it is neither a jus in re nor a jus ad rem. It is simply a right to charge the property it affects, with the payment of the particular debt, in preference and priority to other debts, so far as the statute confers such preference, if all the requisitions of the statute are observed. Of itself, when the statutory requisitions to its creation are observed, it has not the force and effect of a judgment, and is noi self-enforcing, or self-executing. Until a judgment is obtained, in the mode pointed out in the statute, it is inchoate; and it is as dependent, for operation and effect, upon the rendition of a judgment, as the statute directs, as is the lien created by the levy of an attachment upon the rendition of judgment in the attachment suit. — Phillips Mechanic’s Liens, § 9.

To render the lien effectual, the statute provides a suit at law, as in ordinary civil actions, with these exceptions. The-complaint must not only allege all the facts necessary to charge the debtor personally, but it must also aver the facts necessary to secure a lien, and a description of the property to be charged therewith. Not only the parties to the contract, but all persons having an interest in the matter of controversy, or in the property to be charged, may be made parties ; the proceedings binding only such persons as are made parties. The judgment, if it is to operate otherwise than as in personam (upon the person of the debtor), — must describe the property charged with its payment, and direct that it be levied of such property. The execution, issuing on it, is a special fieri facias, conforming to it. — Code of 1876, §§ 3446-47-50-53. The judgment contemplated by the statute, so far as it declares, establishes, and authorizes the enforcement of the lien, is a judgment strictly in rem. It is the liability of the property which is fixed — the charge upon it which is intended to be enforced.- — Ravisies v. Stoddart, 32 Ala. 603.

It may be true that the complaint, in the action commenced by the appellants against Bickford, avers all the facts necessary to the creation of the statutory lien, and that upon proof of these facts a judgment ought to have been rendered as the statute directs, under which the lien could have been enforced. The judgment rendered, however, was in personam only, and not in rem. The property to be charged is not mentioned or described in it, nor any reference made to it; nor has it any element, or characteristic, which can distinguish it from an ordinary judgment in personam, rendered in an ordinary action ex contractu. There is nothing attaching it to the property described in the complaint, or to any particular property of the defendant. A special fieri facias, the remedy for the enforcement of the statutory lien, could not issue upon it. Such a writ would not conform to, but would be an unwarranted departure from it. It is apparent, therefore, that the lien claimed by the appellants under the statute, is not established by this judgment, and if, when established, it would have precedence over the lien of the execution under which appellee deduces title, the precedence is dependent upon a judgment which has not been obtained. Consequently, if there was error in the instructions given the jury (which we incline to the opinion are correct), it was error without injury to the appellants.

Affirmed.