Tedder v. Wilmington & Weldon R. R. ( 1899 )

In August, September, and October, 1897, the plaintiff, at the request of the defendant Sikes, hauled from the swamp and delivered, on the right of way of the railroad, cross-ties, for which service, and no other, Sikes is due him $140.85. On 11 December, 1897, plaintiff filed and had recorded a lien on said cross-ties. Before 11 December, 1897, Sikes sold (344) and delivered said cross-ties to one Wade, who sold and delivered the same to the defendant railroad without notice of plaintiff's claim, and Sikes had no interest in the cross-ties when said lien was filed. The court held that the plaintiff was entitled to recover.

At common law, laborers engaged in cutting, hauling and driving timber had no lien thereon. A lien may be acquired by continued possession. The moment that possession is voluntarily surrendered, the lien is gone. 1 Jones on Liens, sec. 702. So, where a laborer repaired a wagon and surrendered it to the owner before payment, the laborer had no lien. Possession is absolutely necessary to the existence of the lien.McDougald v. Crapon, 95 N.C. 292.

The Constitution, Art. XIV, sec. 4, declares: "The General Assembly shall provide by proper legislation for giving to mechanics and laborers an adequate lien on the subject-matter of their labor." Accordingly, the Legislature has enacted (The Code, sec. 1781) that for every building built, rebuilt, repaired, or improved, together with the necessary lots on which said building may be situated, etc., shall be subject to a lien for material furnished or for work done on the same. The Code, sec. 1782, secures a lien for work on crops or farms. The Code, sec. 1783: "Any mechanic or artisan who shall make, alter, or repair any article of personal property at the request of the owner or legal possessor of such property shall have a lien on such property," etc., and may retain possession until his reasonable charges are paid. If, however, he surrenders possession of the same, he loses his lien. McDougald v. Crapon,supra.

The Code, sec. 1796, provides that servants' and laborers' share of the crops for wages by contract shall not be subject to sale under execution against their employers or the owners of the land (345) cultivated.

Applying the law, as above stated, to the facts in the present case, the plaintiff has no lien, either at common law or statutory. It seems, so far, that the Legislature has provided a lien only when the service or labor is for the betterment of the property on which the labor is bestowed, leaving the laborer in all other cases to secure himself as at common law.

ERROR.

Cited: Glazener v. Lumber Co., 167 N.C. 679; Thomas v. Merrill,169 N.C. 627.