2960766 | Ala. Civ. App. | Oct 10, 1997
Lyman A. Lovejoy filed a declaratory judgment action against Birmingham Lumber and Building Materials, Inc. Lovejoy was seeking to determine the legal consequence of a judgment which purported to confirm and perfect a lien on real property that he had acquired after the lien was filed, but before it was perfected. Lovejoy was not a party to the lawsuit that was filed to perfect the lien. In the instant suit, the trial court entered a summary judgment in favor of Lovejoy; Birmingham Lumber appealed. This case has been transferred to this court by our supreme court, pursuant to Ala. Code 1975, §
In December 1994 Birmingham Lumber filed a materialman's lien against Lot 30, Hickory Lane Estates, in St. Clair County. At that time, title to that lot was vested in James Dean Isdell. In January 1995 Isdell transferred title to that lot to Lyman Lovejoy. In February 1995 Birmingham Lumber filed an action against Isdell on an open account to perfect the materialman's lien on Lot 30, Hickory Lane Estates. In May 1995 a judgment was entered against Isdell, awarding Birmingham Lumber $67,045.71, a portion of which ($14,808.24) was awarded in connection with the materialman's lien. A certificate of judgment was recorded in the Probate Court of St. Clair County, which purported to confirm and perfect the lien for $14,808.24 against Lot 30, Hickory Lane Estates. Subsequently, Lovejoy discovered the cloud on the title to that lot and filed a declaratory action, challenging the validity of the judgment perfecting the lien against Lot 30, Hickory Lane Estates. Birmingham Lumber contended that the lien was valid against Lovejoy and that it was not necessary to join Lovejoy as a party to the suit perfecting the lien because it had no notice of his interest in the property. The trial court held that by virtue of Ala. Code 1975, §
Birmingham Lumber appeals, contending, inter alia, that the entry of a summary judgment in favor of Lovejoy was reversible error. Birmingham Lumber based this contention on the premise that the filing of a claim of a lien on property flows with the land. This is not so; the filing of the suit for enforcement of a lien within six (6) months of the filing of the claim of lien and the subsequent judgment therein against the owner is the perfection of the lien. There is nothing to flow with the land until there has been a perfection. There was no perfection in this case because the owner at the time of judgment was not a party to the suit as required by §
The foregoing opinion was prepared by Retired Appellate Judge L. CHARLES WRIGHT while serving on active duty status as a judge of this court under the provisions of §
AFFIRMED.
ROBERTSON, P.J., and YATES, MONROE, and CRAWLEY, JJ., concur.
THOMPSON, J., concurs in the result.