Leftwich Lumber Co. v. Florence Mutual Building, Loan & Savings Ass'n , 104 Ala. 584 ( 1894 )

McCLELLAN, J.

This bill is filed by the Florence Mutual Building, Loan & Savings Association against the Leftwich Lumber Co., Alliger & Golightly, William Wilier, T. J. Ross, Alice E. Ross and F. S. Mallory. Its purpose is to have three certain mortgages, two of which were excuted by T. J. Ross and Alice E. Ross and the third by Ross and wife and said- Mallory, covering a lot in the town of Florence, declared a first lien thereon as against asserted mechanics’ and material-men’s liens of the several other defendants, to enjoin judgments which the Lumber Co. and Alliger & Golightly had obtained against Ross, who was the owner of the lot, with condemnation of the lot to their satisfaction, to enjoin a decree in chancery obtained by Wilier against Ross for the enforcement of his alleged material-man’s lien, and to have the premises sold for the satisfaction of said mortgages in priority to all of said alleged liens.

The question of chief importance in the case is as to whether the several mechanics’ and material-men’s liens relied on by the respondents were perfected by appropriate proceedings in the probate court and became valid charges, upon the property in the hands of "the several parties who now assert them. In determining this question, the judgments obtained by the Lumber Co. and Alliger & Golightly, respectively, and the decree rendered in favor of Wilier, declaring their claims to be such liens and condemning the property to their satisfaction, are not to be taken into account, since the complainant was not a party to those actions and is not bound by the results reached in them. — 15 Amer. & Eng. Encyc. of Law,p. 165; Young & Co. v. Stoutz & Co., 74 Ala. 574.

The facts necessary to be stated in respect of the claim of the Lumber Co. are the following : T. J. Ross, the owner of the lot, entered into a contract with Alliger & Golightly to build a house thereon. When the house was completed there was a balance due the builders of about twelve hundred and fifty dollars. They owed the Leftwich Lumber Co. $863.69 for lumber used in the building, and for this sum they gave the Lumber Co. an order on Ross which the latter accepted. Ross subsequently executed anote at 30 days to the Lumber Co. for $500 of this amount. No part of this $863.69 was ever paid to the Lumber Co., and. on February 10, 1890, within the statutory period, the Lumber Co. filed a statement in the office of the judge of probate claiming a “lien on the lot in question and upon the building situated thereon to secure the payment of eight hundred and sixty-three dollars and sixty-nine'cents ($863.69) ; being the amount due and admitted to be due Alliger & Golightly, the original contractors, for said building, on their contract, after deducting all just credits according to a just and true account thereof hereto attached and marked exhibits A., B. & C., which said amount was, on the 4th day of September, 1889, assigned by said Alliger & Go-lightly to said Lumber Co., and they were thereby invested with all the rights of said Alliger & Golightly.’’ The statement further avers, that “T. J. Ross, of Florence, Ala., is the owner of said premises,” and is signed ‘ ‘Leftwich Lumber Co., per J. B. Leftwich, Gen. M’g’r. Leftwich Lumber Co.” . And it is verified by said J. B. Leftwich, who swears “that he has personal knowledge of the matters and things stated in the foregoing statement, and that they are .true to the best of his knowledge and belief.” The exhibits to this statement are: (A.) The "order of Alliger & Golightly on Ross to pay the Lumber Co. $863.69 ‘ ‘due them for all material they furnished for your house on Ironside Street,” &c., with direction to charge the same to the account of “the drawers ;” (B.) •, Ross’s note for $500 of the amount of the order ; and, (C.), this account: “T. J. Ross, with Leftwich Lumber Co. Sept. 14th, 1889. To amt. assigned by Alliger & Golightly, $863.69.” Several objections are made to the sufficiency of this statement to perfect a lien upon the house and lot in question, under section 3022 of the Code. It is said that neither the statement itself nor the facts aliunde show that the Lumber Co. was the assignee of Alliger & Golightly’s lien. We can not concur in this position. It is not disputed that there was an efficacious assignment by A. & G. of a part of their claim against Ross for which a lien existed in their favor; Ross himself having assented to the assignment. And it is provided by our statute that “Any claim for which a lien is provided in this chapter [creating liens in favor of mechanics and material-men] may be assigned; and the assignee shall be thereby invested with all the rights of the original holder of the lien, and be entitled to all his remedies to enforce them.” — Code, § 3047. If this section means anything, its meaning is that the assignment of the claim, the debt, without more, carries with it the assignment of the lien for its enforcement. And, given the assignability of the debt, the lien, it seems, would follow it even in the absence of express statutory provision to that effect. — Phillips on Mechanics’ Liens, § 55 a ; Westmoreland v. Foster, 60 Ala. 448. Again, it is insisted that the statement filed by the Lumber Co. is insufficient to perfect the embryonic lien, in that it does not set forth an itemized account of the claim against Ross, for which a lien is asserted. The statute requires the statement to contain “a just and true account of the demand secured by the lien, after all just credits have been given,” &c. It appears from the statement and its exhibits that the amount claimed, $863.69, was for material furnished for the building of the house sought to be subjected, and that Ross admitted the correctness of the claim in all respects by accepting Alliger & Golightly’s order for that sum and specifying that it was due for such material'. And it is clearly shown that this amount for material was due from Ross, originally to A. & G. and then by assignment to the Lumber Co. There was no necessity for an itemization of this account. A just and true account of a demand is not necessarily a statement of the items of the original indebtedness. The statute does not require itemization. The demand here is for $863.69 for material used in the erection of a certain building, and this statement of the demand, this account of the demand, the statement filed shows it was admitted by Ross to be just and correct, and so it is shown to have been by the evidence. The statement, in our opinion, was sufficient. — Ainslie & Co. v. Kohn et al., 16 Ore. 363 ; Heston v. Martin, 11 Cal. 41; Brennan v. Swasey, 16 Cal. 141; Selden v. Meeks, 17 Cal. 129; Lonkey v. Wells, 16 Nev. 271; Davis v. Hines, 6 Ohio St. 473 ; Gilman v. Gard, 29 Ind. 291; Bank v. Curtiss, 18 Conn. 342 ; s. c. 46 Am. Dec. 325.

The verification of this statement is as follows : “State of Alabama, Lauderdale County : This day personally appeared before me, E. C. Crow, a notary public in and for the State and county aforesaid, J. B. Leftwich, Gen. M’g’r. of Leftwich Lumber Co., who being duly sworn says he is Gen. Manager of the Leftwich Lumber Co., and that he has personal knowledge of the matters and things stated in the foregoing statement, and that they are true to the best of 1ns knowledge and belief. Feb. 10th, 1890. E C. Crow, Notary Public.” This affidavit is unlike that held to be an insufficient verification of a mechanic’s lien statement in Globe Iron Roofing & Corrugating Co. v. Thacher, 87 Ala. 458, in this : here the affidavit affirms that the affiant has personal knowledge of the facts contained in the statement and that they are true to the best of that personal knowledge, and that he believes them to be true ; .while in that case there was no affirmation of personal knowledge at all, but only that the statement was true to the best of affiant's knowledge and belief. The difference is obvious and important. There, to place the construction most favorable to the lien on the affidavit, it could not mean more than that the affiant knew some of the facts and believed others without knowing them to be true. Here, if the affiant did not have personal knowledge of all the facts he has sworn falsely, and the perjury is none the less flagrant because of the further assertion that he believed these facts, which he has sworn'he knows to be true, to be as stated. The verification is, in our opinion, sufficient: it shows on its face that the affiant had personal knowledge of the facts stated. — Code, § 3022.

The statement filed being sufficient in form and substance and being verified by a person who swears he has persona] knowledge of the facts stated in it, the lien was thereby perfected and became at once a valid charge upon the property described for the amount claimed, if as a matter of abstract fact its statements were true, and this whether in point of extrinsic fact the affiant actually knew, as he swore he did, that they were true or not. It is the filing and verification of the statement that fixes the lien so far as ex parte action can have that effect. If the statement is sufficient in its facts, and the verification is of the truth of such facts without more, in cases of this sort, or of their truth to the knowledge of the affiant, the lien exists, perfected in the sense that if the statement is true and shown to be so on the trial for its enforcement it is enforceable though it may be the affiant swore falsely in respect of having personal knowledge of the correctness of the statement. So far as the verification goes, the purposes of the statute are subserved when the correctness of the statement is attested by the purging of the conscience of the affiant in the assertion by him under oath that the statement is true ; this and not the abstract fact of truth is the condition in this respect upon which the lien is perfected. We do not understand that there is anything in the case of Globe Iron Roofing & Corrugating Co., 87 Ala. 458, supra, opposed to this view; certainly nothing in what was decided in that case. And our conclusion is, that it was wholly immaterial to the existence of the lien of the Leftwich Lumber Co. whether J. B. Leftwich, who swore to it as upon personal knowledge, in fact had such knowledge or not, if, as is the fact, the statement itself was true. This disposes of the objections to the lien of the Lumber Co', as we understand them.

The claim of lien and statement filed by Wiliam Wilier was against two entirely distinct lots and the houses thereon situated in different parts of the town of Florence in a gross sum for materials supplied by Alliger & Go-lightly, who built both houses but under distinct contracts . The whole gross sum is sought to be collected by the enforcement of the supposed lien against the house involved here, and the. consent decree in the case of Wilier v. Boss adjudged this sum to be alien upon this house and lot and ordered the same sold in satisfaction thereof. It does not appear by the statement of the claim filed in the office of the judge of probate what part of the gross amount claimed was for materials used in the building of this house. Very clearly, in principle and upon all authority, the statement thus filed was wholly bad and in-efficacious to fix a lien upon either of the lots and houses in question. — Phillips on Mechanics’ Liens, §§ 376, 377, and authorities there cited; 15 Am. & Sng. Encyc. of Law, pp. 120, 121. The other objections to the lien claimed by Wilier need not be considered.

Alliger & Golightly, after assigning $863.69 of their claim against Ross to the Lumber Co. and something like $185 to Wilier, had a balance of $200 due on the contract price for the building of this house. For this they filed a claim and statement for a lien. The objections to the validity of their alleged lien proceed upon the supposed insufficiency of the statement as in the case of the Leftwich Lumber Co. What we said in reference to the statement filed by said Company will suffice to show the grounds of our conclusion that the statement of Alliger & Golightly was sufficient to perfect the lien claimed by them.

The taking of Ross’s notes severally by the Lumber Co. and Alliger & Golightly for the balance due them, respectively, payable within the period prescribed for the filing of the statement of their claims in the office of the probate judge was. not a waiver, and did not work a destruction, of their inchoate liens. — 15 Am. & Eng. Encyc. of Law, pp. 105 — 107. And whether these notes were surrendered to Ross on or before the actions brought to foreclose the liens is a question in which the present complainant has no interest. Like the defense of usury, attempted to be made by the respondents against the mortgages of complainant, this was a matter of which Ross alone had a right to complain.

An execution at law is. an order to the sheriff to levy and sell for the payment of a judgment, and for the purposes of levy and sale to that end it is a lien on the property of the defendant. The plaintiff in judgment and execution may control the officer in respect of his acts under it: he has the power to direct the officer not to levy the writ at all or for a given period of time. When such a direction is given, the officer no longer has authority to levy the writ: it is no longer an order to him to proceed to make the money adjudged' to the plaintiff; it is- dormant, it is lifeless; and with its destruction in this way, as well as any other, its lien upon the property of the defendant also dies, and is as if it had never existed. There is no lien because there is no execution which is the source of life to the lien. The lien which the Leftwich Lumber Co. had upon the premises involved here existed before and exists since the rendition of the personal judgment against Boss, and the order of condemnation made as a part of the entry of that judgment wholly independently both of the judgment and that order. The utter destruction of both would not prejudice this lien. It is the creation of the statute springing into existence upon the concurrence of certain facts and conditions, among which is neither the judgment against Boss personally nor the judgment condemning this property to be sold for the satisfaction of the lien. The agreement embodied in the judgment to suspend the execution for sixty days might destroy the lien of the judgment, if the judgment itself were a lien— which it is not — though the weight of authority seems to be the other way, (2 Freeman on Judgments, § 383), and the suspension of levy of an execution, issued on the judgment, by direction of the plaintiff, would destroy the lien thereof. But neither of these liens is that which stands in the way of the complainant. They would be general liens given by statutes, other than those prescribed for the lien of mechanics and material-men, to judgments and executions. These would be dormant because the order to levy and sell implied in a judgment when judgments are liens and expressed in executions has been countermanded by the plaintiff. But an order to sell is no part of a mechanic’s lien : this lien exists as well before an order to sell can be made as j.t does after such order has been made; and' the mere postponement by agreement of the execution of such order can not destroy or affect the lien of the Leftwich Lumber Co., the existence of which in nowise depends upon the existence of the order. It might as well be said that if in a decree to foreclose a mortgage there is incorporated, at the suggestion and request of the complainant, a direction that the defendant be allowed sixty days before steps toward a sale shall be taken to pay the mortgage debt, the lien of the mortgage as against junior incumbrances is thereby destroyed, as to say that the order suspending the judgment in this case for sixty days operates to destroy the lien of the Lumber Co.

The lien of mechanics and material-men, ‘ ‘ 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 rapairs 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 such work or subsequently created.” — Code, § 3019. The first of the complainant’s mortgages on the lot of land here involved was executed on April 29, 1889. Whether the work had then commenced on the building erected thereon by Alliger & Golightly is a mooted question in the case. The complainant having priority under this mortgage unless work had been commenced at the time it was executed and the fact that work had been begun, if it be a fact, being peculiarly within the knowledge of the contractors, who are defendants to the bill along with other parties claiming through them, we are of the opinion that the burden of proving it was upon the defendants : the fact from complainant’s point of view was negative in character and best known to the respondents. This burden has not been discharged. Golightly swears that work had been commenced before April 29th, and Ross swears that nothing whatever toward the erection of the building was done on or before that day. And the testimony of each is given with like circumstantiality and is equally direct and positive. If there is aught to turn the scales out of this equipois, it is the fact that Golightly is interested in establishing a date prior to April 29th as the beginning of the work, and Ross’s interest is equally balanced, so that he would neither gain nor lose by either determination of this issue of fact; and this fact goes to the favor of the complainant. Upon these considerations we are of opinion that the mortgage of April 29, 1889, is entitled to priority of satisfaction out of the lot itself to the liens of the Leftwich Lumber Gompany and Alliger & Golightly.

It results from the foregoing views and conclusions that the decree of the chancery court must be reversed. The cause will be remanded for final decree and proceedings thereunder in that court.

Reversed and remanded.