Loyd v. Guthrie , 131 Ala. 65 ( 1901 )

TYSON, J.

In Donald v. Hewitt, 33 Ala. 534, the contract provided that “‘Schnetz & Hewitt are to retain a special lien on said boat and engine, until the notes are paid.” It ivas contended that Schnetz & Hewitt had no lien by virtue of the contract. It was insisted in that case, as here, that the parties to the contract in providing that they “are to retain a special lien” contemplated no other than the statutory lien which they had under the statutes of Kentucky. But the court said: “If this be so, the parties have done a vain and useless thing, in bringing the subject of a lien into their contract. The language employed is appropriate to create a lien, and to provide for its continuance. If the parties intended that the lien so held should exist- by virtue of' the statute of Kentucky, and not of the contract, they have not said so; nor have they said that which authorizes us to infer it. We give effect to the words of the contract, and allow a motive to the parties in the use of them, when we understand them as creating a lien; one to exist by virtue of, and to have effect 'determinable by, the contract.” The court, proceeding, held that Schnetz & Hewitt had a lien by virtue of their contract, which could be enforced in equity against the owner of the boat and all other persons except innocent purchasers for value. The legal effect of the language of the contract quoted above and which the court held created an equitable mortgage, cannot be differentiated upon principle from that employed in the con-trad in the case under consideration. Here, after reciting the consideration -of the note to be for money, material and labor furnished by complainant in the building of a store room on a designated lot, this language is employed: “And a mechanic’s lien is held on this building to secure the payment of this note.” If we substitute “special” for “mechanic’s” and “retain” for “held” the language of the two contracts would be substantially the same. Does the 'slight difference in verbiage which confessedly is quite shadowy, so materially differentiate the two as to justify the conclusion in the one, that it created an equitable mortgage, and in the other that there was no intention to create a charge or trust upon the building? We think not. To so hold, would be to give effect to a shadow and not substance; resulting in the defeat of the intention of the parties' as expressed in the note and in rendering the provision in it under consideration inefficacious, or to nullify it. In such case, it is the duty of the court to adopt that construction which will carry it into effect, and to this end, if necessary, the word “mechanic’s” would be construed as descriptive of the payee named in the instrument rather than the lien created by it; or as was said by Lord Mansfield in Pugh v. Leeds, Cowp. 714, “the parties necessarily understood and used the language in that sense which made their deed effectual.” A mechanic’s lien is purely of statutory origin. “Its character, operation and extent must be ascertained by the terms of the statute creating and defining it. While every lien of this kind has a contract as its foundation, it is created rather by the law, than by the contract of the parties, is analogous to the vendor’s lien for the purchase-money of land, and is based on a like reason,” etc. — Osborne v. Johnson Wall Paper Co., 99 Ala. 309; Wadsworth v. Hodge, 88 Ala. 500. “The mere fact that work and labor are performed and materials furnished for the erection or repair of buildings, or for the construction of other improvements, will not give rise to the lien. The work and labor may be done, and the materials furnished on the personal credit of the party contracting for them, and this is often true, and all that is intended. By the express words of the statute, the lien can come into existence only upon a compliance with its provisions. The first step which must be taken to create it, is the filing in the office of the judge of probate of the county in which the property to be charged is situate, a just and true account of the demand, after all just credits have been given, which must be verified by the oath of the claimant,” etc. — Chandler v. Hanna, 73 Ala. 393. In short, “its creation depends upon a compliance, in all matters of substance, with the provisions of the statute to which it owes its existence.” — Long v. Pocahontas Coal Co., 117 Ala. 587. Being statutory and existing only by operation of law arising out of the relation of the parties, , upon a compliance with the terms, of the statute, it can no more be raised by contract than a landlord’s or vendor’s lien. — McDonald v. Elyton Land Co., 78 Ala. 382; Bankhead v. Owen, 60 Ala. 466; Hester v. Hunnicutt, 104 Ala. 282; 3 Brick. Dig. 613, § 47; Scheerer v. Agee, 106 Ala. 139; Hamilton v. Maas & Bro., 77 Ala. 283; Collins v. Whigham, 58 Ala. 438; Tucker v. Adams, 52 Ala. 254. In Hall v. M. & M. R’y. Co., 58 Ala. 10, the contract provided for a retention óf a vendor’® lien; this court held that it created an equitable mortgage, a security for the debt due the vendor and so enforced it. In Kyle v. Bellinger, 79 Ala. 516, the bill was for the enforcement of a vendor’s lien, while the court held that the complainant had no such lien, it also 'held that he had a lien created by the contract between .the parties which he could enforce as an equitable mortgage. See also Smith v. Hiles-Carver Co., 107 Ala. 272. “In 'such cases, the form or language of the instrument is not material, except as an index of the intention of the parties. If it was intended as a security for a valid debt, and this is deducible from the instrument itself, it must be construed to be an equitable mortgage.” — Butts v. Broughton, 72 Ala. 298; Jackson v. Rutherford, 73 Ala. 157; Wood v. Holley Mfg. Co., 100 Ala. 346. See also Ross v. Perry, 105 Ala. 533; Newlin v. McAfee, 64 Ala. 357; Kirksey v. Means, 42 Ala. 426; Whiting v. Eichelberger, 16 Ia. 422; Blackburn v. Tweedie, 60 Mo. 505; Chadwick v. Clapp, 69 Ill. 119; Peckham v. Hadlock, 36 Ill. 38; Gilson v. Gilson, 2 Allen, 115.

The averment of ownership by 'Guthrie is sufficient to withstand the attack made by the motion to- dismiss the bill. While it is not averred in precise term's, it is inferentially averred and the defect in this respect is curable by amendment if advantage be taken of it by demurrer.

The note sufficiently designates the property upon which the lien is created and it is not void on that account. Id cerium est quod certum reddi potest.

The decree dismissing the bill for want of equity is reversed and a decree will be here rendered overruling the motion.

B ever sed and rendered.

McClellan, C. J., and Dowdell, J., dissenting.