Birmingham Building & Loan Ass'n v. Boggs , 116 Ala. 587 ( 1897 )

COLEMAN, J.

The action is ejectment, and the appellee Boggs, who was plaintiff, relies upon a title derived from the enforcement of the mechanic’s lien, and the appellant claims title through a mortgage foreclosure, and the question involves the priority of liens. The meritorious facts may be substantially stated as follows: One Garrison, the owner, entered into an agreement with one Westbrook to erect for him a dwelling upon lots numbered 6 and 7. In pursuance of the agreement Westbrook, who had. contracted to furnish the material,'purchased from the Hawldns Lumber Co. certain material and began the construction of the building. During the progress of the work, Garrison ascertained that he had mistaken the location of his lots 6 and 7, and that the improvements were being made upon lots 8 and 9, to which lots he had no title and in which he owned no interest. He was a mere trespasser upon these lots. He immediately suspended work, and it appears that Westbrook never afterwards performed any other services, or procured any additional material. One Thweatt, a resident citizen of Talladega, a distant county, owned lots 8 and 9, and Garrison began arrangements for the purchase of these lots from the owner. Not having the money to pay for them, he applied to the Birmingham Building and Loan Association for a loan, which association agreed to advance him a sufficient amount. The agreement upon which the money was advanced or loaned, seems to have been as follows: Thweatt executed a deed -to Garrison which was not to be delivered until the purchase money -ivas paid, and for this purpose the deed was sent by express to Birmingham. Garrison executed a mortgage upon the lots 8 and 9 to the Building and Loan Association, and upon the execution of the mortgage by Garrison, the loan company paid over the money to Thweatt and received the deed from the express company, and delivered it to Garrison. After completing the purchase of the lots 8 and 9 upon the terms stated, Garrison proceeded with the construction of the improvements, and for this purpose procured additional materials from the Hawkins Lumber Company. The materials not having been paid for, the Hawldns Lumber Company instituted legal proceedings to enforce a material-man's lien, which resulted in a judgment audsale of the premises, at which sale Boggs, the appellee, became the purchaser. The Building & Loan Association was not a party to the .legal proceedings for the enforcement of the lien for materials, and on the day of sale at which Boggs became purchaser, gave notice of its claim. The mortgage debt not being paid, it was foreclosed and the appellant, by virtue of a power contained in the mortgage, purchased the property and entered into possession. Boggs instituted ejectment, and under the instructions of the court, the jury returned a verdict for the plaintiff.

In considering the question, we regard the transaction between Garrison and Thweatt and the loan company for the xsurchase of lots 8 and 9 as contemxooraneous and constituting but one transaction. Ax>pellee insists that under the rule declared in some of our decisions, the material lien attached as soon as the lumber was x>l&ced upon the lots. However correct a XR'inciple this may be when applied to the facts of the cases in which it was asserted, it was not intended to declare that the lien attached to lots not owned by the contracting party, and that a lien could be created by a mere tresxsass upon another’s prox3erty. It is evident that at no time, in law, did Garrison own lots 8 and 9 before it was subject to the mortgage. Whatever rights Garrison may have acquired by the purchase, related back in favor of the material lien, but no' others, and, as we have seen, these rights were subject to apxoellant’s mortgage. The court erred in assuming and declaring as matter of law, the material lien attached to lots 8 and 9 from the date the lumber was placed upon these lots.

Whether the appellee Boggs is entitled to any equitable relief under the rule declared in the case of Wimberly v. Mayberry, 94 Ala. 240, cannot be considered, as in the present action we can only deal with the legal title.

We are of opinion the decision of the question considered is sufficient to guide the trial court on the next hearing.

Reversed and remanded.