Rothe v. Bellingrath , 71 Ala. 55 ( 1881 )

SOMERVILLE, J.

Under the provisions of the present Code, a mechanic’s lien, whether for work and labor done, or 'for materials furnished, is binding “ only to the extent of all the right, title and interest owned therein by the owner or proprietor of such building, erection or other improvement [as may be constructed by contract for any person] for whose immediate use or benefit the labor was done or things were furnished.” — Code, 1876, § 3441.

Where buildings or other improvements are erected on leased or rented Imids, at the request and on the exclusive credit of the lessee, the contractor’s lien is extended by the statute, not only to snob improvements and erections as may be constructed by him, but also to the unexpired leasehold term of the lot or land, not exceeding one acre,' on which the improvements are made. — Oode, ,§§ 3440, 3443. It is also made to fasten on the fixtures or materials furnished. But this must, of course, in-, volve the necessary implication, that these materials, in order to authorize the enforcement of such lien on them specifically, must be capable-of practical identification. This can not be, where they are used merely for repairs and are so merged in the freehold as to'be incapable of severance.

It never was intended, however, that the lessee should have power to bind the interest of the lessor. lie can only bind the improvements or erections which are capable of both identification and practical severance, and the leasehold estate. But when the lien attaches to the leasehold interest, it is subject to all the conditions of the lease. And where the lease has been forfeited, the holder of such lieu, before he can be placed in the shoes of the lessee, even by becoming the purchaser of the leasehold term and the improvements, must first pay to the lessor “ all arrears of rent, or other money, interest and costs due under the lease.” — Code, § 3443; Phillips on Mech. Lien, § 192, § 90. At common law the burden of repairs was always cast on the tenant, and the landlord was under no implied obligation to keep rented premises in repair. The statute must be construed in harmony with this principle, so far as its letter will permit. — Phil, on Mech. Lien, § 90.

Where the cardinal facts are established, bringing a case within the purview of the statute, the only further issues required to be submitted to the jury are, the amount of the debt claimed, and the description of the particular property sought to be charged with a lien for its satisfaction. — Code, §§ 3451-52.

It is thus clearly evident that the amount of the rent due the lessor by the lessee, or that of any other moneys or damages accruing under the lease, is not a material issue on the trial for the enforcement of a mechanic’s lien under- the statute. It may become material, however, after the rendition of a judgment in favor of a plaintiff, where, in seeking to enforce such judgment, he becomes the purchaser of the leasehold estate, or where • a third person purchases such interest of the lessee. The purchaser at such sale takes the estate crum onere — subject to these claims of the lessor — and hence their relevancy after sale made under execution on the judgment. — Oode, § '3443. The court below, therefore, erred in permitting evidence to be introduced, showing the amount of rent due by Bellingra-th to Wilson, and also in admitting evidence of the damage alleged to have been done by the lessee’s carelessness in running the mill. These facts were irrelevant and should have been excluded.

There’was no evidence tending’to show that Bellingrath was the agent of Wilson, and no such relationship can be implied from that of landlord and tenant. ITe was merely authorized by Wilson to put up certain improvements, on his own credit and at his own expense. The agreement that the lessee should be re-imbursed for them, by deducting theii- valuation from rents, does not change the case. It was rather a negation of the fact of agency than otherwise.—Mills v. Matthews, 7 Md. 315; McCarty v. Carter, 49 Ill. 53; Phil, on Mech. Lien, § 89. The fourth charge was, for these reasons, properly refused.

The letter written by the plaintiff to Wilson, and introducing Bellingrath, was improperly admitted in evidence. It had no legitimate bearing on the issues submitted to the jury and was irrelevant.

Reversed and remanded.