Grimsley v. First Ave. Coal & Lumber Co. , 217 Ala. 159 ( 1927 )

The appeal is from a decree overruling demurrer to the bill as last amended. The bill was filed to enforce a materialman's lien. Sections 8832, 8842, Code of 1923.

The bill and its exhibit, with the usual leave of reference, constitute the pleading of complainant, and demurrer directed thereto will be so referred and tested. The exhibit attached to the bill when treated as a part thereof on demurrer in proper circumstances aids and supplements the bill. Hogan v. Scott,186 Ala. 310, 65 So. 209; Clements v. Clements, 200 Ala. 529,76 So. 855; Pool v. Menefee, 205 Ala. 531, 88 So. 654; Piedmont Co. v. Piedmont Foundry Mach. Co., 96 Ala. 389, 11 So. 332; Conoly v. Harrell, 182 Ala. 243, 62 So. 511; Minter v. Branch Bank at Mobile, 23 Ala. 762, 58 Am. Dec. 315. The pleading when so considered together shows the complainant had a contract with, and that the materials were furnished to and debt incurred by contract with, the owner or proprietor of the property improved therewith (section 8832, Code), and the bill was not subject to the grounds of demurrer directed to this phase of that pleading (Birmingham Building Loan Ass'n v. Boggs, 116 Ala. 587, 22 So. 852, 67 Am. St. Rep. 147).

The averment that the lien is sought to be enforced upon the several lots specifically indicated as being in a city, town, or village, indicated and described as "contiguous or adjacent," is in the language of the statute and is sufficient. Section 8839, Code 1923. Contiguous means "in actual contact"; also, "near, though not in contact; neighboring; adjoining." Adjacent means "lying near, close, or contiguous; neighboring; bordering on," etc. Webster's New Int. Dict., p. 486, Latest Authentic Edition. Here no contradiction or repugnance or uncertainty in said pleading that is subject to grounds of demurrer directed thereto is presented.

Appellant challenges the bill as to the averment that the owner and proprietor of the lots improved, "sold," or "conveyed" specific lots subsequent to the commencement of the work on said building or improvement, and there is no unequivocal averment that such purchaser had notice of the existence of the lien. It cannot be said that one may purchase a newly constructed house before the time provided for the perfecting of the material and mechanics' liens thereon had expired, and defeat the purpose of the statute. It is immaterial whether such a sale was bona fide or fraudulent, the property is subject to the lien when perfected and enforced as provided by the statute.

And the fact that the work was in progress is notice to all who dealt with said property or contracted therefor with its owner that the right under the statute exists, and sales or conveyances made within the time prescribed by the statute would be subject to the right. The declared priorities of section 8833 of the Code have not the effect of permitting a sale or conveyance by deed within the period of the statute that would defeat the mechanics' and materialmen's liens given by section 8832 of the Code. If something is done of a substantial and conspicuous character to make it apparent to bona fide purchasers that the building has actually commenced (Le Grand v. Hubbard [Ala. Sup.] 112 So. 826;¹ Welch v. Porter, 63 Ala. 231; Jackson v. Farley, 212 Ala. 594, 103 So. 882; 40 C. J. 292) that is notice relating to commencement of the work.

In Rockel on Mechanics' Liens, at page 393, § 150, it is said:

"The fact that the work is in progress (Soule v. Dawes,7 Cal. 575; Austin v. Wohler, 5 Ill. App. 300) is a notice to all of the rights of the mechanic, and all conveyances made during that time are made subject to the mechanic's rights (White v. Chaffin, 32 Ark. 59; Fleming v. Bumgarner, 29 Ind. 424; D. L. Billings Co. v. Brand, 187 Mass. 417, 73 N.E. 637; Dodge v. Hall, 168 Mass. 435, 47 N.E. 110; Hammond v. Darlington,109 Mo. App. 333, 84 S.W. 446; Bates Mach. Co. v. Trenton, etc., R. Co., 70 N.J. Law, 684, 58 A. 935 [103 Am. St. Rep. 811]; Gordon v. Torrey, 15 N.J. Eq. 112, 82 Am. Dec. 273; Sinclair v. Fitch, 3 E. D. Smith [N.Y.] 677). It is immaterial whether the sale was fraudulent (Jefferson v. Hopson Bros., 84 S.W. 540, 27 Ky. Law Rep. 140), or bona fide the property is subject to the lien that may thereafter be perfected within the time limited by statute (Reynolds v. Manhattan Trust Co., 83 F. 593, 27 C. C. A. 620)."

In this jurisdiction it is declared that the mechanic's lien attaches and has priority over mortgages and other incumbrances given or recorded and attaching after the building or improvement was commenced. Jackson v. Farley, 212 Ala. 594,103 So. 882; First Ave. Coal Lumber Co. v. King, 193 Ala. 438,69 So. 549; Welch v. Porter, 63 Ala. 225. And it is established that as against mortgages and trust deeds a mechanic's lien takes precedence according to the time when it attached to the property in its improvement. Leftwich Lumber Co. v. Florence Mutual Building, Loan Savings Ass'n, 104 Ala. 584, 18 So. 48; Welch v. Porter, 63 Ala. 225; Montandon Co. v. Deas, 14 Ala. 33, 48 Am. Dec. 84. And that when the property is subject to a mortgage or other incumbrance at the time of the accrual of a mechanic's lien, such incumbrance retains its priority. Wimberly v. Mayberry, 94 Ala. 240, 10 So. 157, 14 L.R.A. 305. So of purchase-money mortgages. Birmingham Building Loan Ass'n v. Boggs, 116 Ala. 587, 22 So. 852, 67 Am. St. Rep. 147.

And in Hanchey v. Hurley, 129 Ala. 306, 311, 30 So. 742, the majority held the mechanic's lien was superior to the mortgagee whose mortgage was in existence at the time of the repairs, but who foreclosed and became the purchaser at foreclosure sale after the materialman's lien had been perfected, etc.

In Montandon Co. v. Deas, 14 Ala. 33, 44 (48 Am. Dec. 84), Mr. Justice Chilton said (a suit to enforce a builder's lien, Clays' Digest, 375):

"The terms of the contract for the erection of the building must be reduced to writing and recorded. The building of the house is an act open and notorious, and the lien is perfected upon the completion of the work, and recording of the contract. These, in the absence of a particular description of the land in the contract, are sufficient to put a prudent man upon inquiry into the existence of the lien, and to charge him without notice, more especially if, subsequent to the registration of the contract and the completion of the building, he take an assignment. It is obvious that the statute designed the erection of the building to operate as notice, from the fact that the contract is not required to be recorded until within 30 days after the erection of the same. So that the argument deduced from inconvenience of want of notice, and surprise, is not well founded."

And in Le Grand v. Hubbard (Ala. Sup.) 112 So. 826,¹ it is declared that the commencement of work upon the improvement is "a matter open to the observation of all, is fixed as the event and the time, when third persons are charged with notice that, on compliance with the terms of the statute, liens will accrue against the building in favor of those whose labor and material bring it into being."

In Young Co. v. Stoutz Co., 74 Ala. 574, an attachment lien subsequent to the accrual of a mechanic's lien is postponed thereto upon a due perfection of the lien, even though the lien is not perfected until after the attachment was levied.

The text of 18 R. C. L. 960, § 100, is that a mechanic's lienholder is not a purchaser within the meaning of a statute which requires registration of incumbrances in order to be valid as against a purchaser for value. And on page 967, § 109, the same author says:

"When the lien statutes recognize the right to a lienfrom the date of the contract or the time of the commencementof the building or the other improvement, or from the beginningof the performance of the labor or the furnishing of material for which the lien is claimed, a lien which has thus attachedis not affected by a change of ownership during the progress of the work. In such a case a purchaser is chargeable with notice that a lien might attach to the property for the improvements." (Italics supplied.) 33 Am. St. Rep. 385; 56 Am. St. Rep. 304; 82 Am. St. Rep. 488.

In this jurisdiction the lien attaches and is created at the time the work on the building or improvement commences. Sections 8832, 8833, Code of 1923; Welch v. Porter, 63 Ala. 225; Lavergne v. Evans Bros. Co., 166 Ala. 289, 52 So. 318; Le Grand v. Hubbard (Ala. Sup.)112 So. 826;¹ Jackson v. Farley, 212 Ala. 594, 103 So. 882. It follows that after a mechanic's lien has attached, it is not defeated by a subsequent sale or conveyance of the property, provided the lienor perfects his lien in accordance with the requirements of law (40 C. J. 336, §§ 448, 449), and it is immaterial that the conveyance was executed before suit is brought to enforce the perfected lien.

The judgment of the circuit court is free from error, and is affirmed.

Affirmed.

ANDERSON, C. J., and SOMERVILLE and BROWN, JJ., concur.

¹ 216 Ala. 164.

On Rehearing.