Board of Supervisors v. Gillen

59 Miss. 198 | Miss. | 1881

Campbell, J.,

delivered the opinion of the court.

The paramount question in this ease is, whether, under “ An Act in Relation to the Lien of Mechanics,” Code 1880, c. 53, public buildings contracted for by the board of supervisors of a county are subject to the lien provided for by said act, and whether the remedies it provides for different classes of persons may be employed against the board of supervisors of a county. If such public buildings are not embraced in the act, and the remedies it gives are not available against a board of supervisors, this bill is not maintainable, for its foundation is the assumption that persons who furnished materials used, and persons employed by the contractor in the erection of the court-house, had the right, created by § 1381 of the Code of 1880, to give notice to the board of supervisors of the amount due them, so as to bind it in the hands of the board, and to authorize the further proceedings authorized by that section. If this assumption is not correct, the bill is demurrable, for, if the notice given to the board of supervisors of the amount due them by the several persons who claim to be paid out of the money due the contractor, did not bind the money in the hands of the officers of the county or oppose any legal obstacle to payment of the money due to the contractor from the county, this suit was improperly brought. In that view it seeks protection not needed, and asks relief from an evil that is not real, but imaginary.

It is clear that the public buildings of a county are not subject to a mechanics’ lien, and cannot be sold to satisfy the demand of the mechanic or material-man. The terms of the law exclude the idea of the liability of such public buildings to the lien it creates, and show that the houses and other buildings of private owners are meant. The provision that the lien shall attach to the land whereon it stands, &c., excludes public buildings, for it would hardly be contended that the site of the court-house of the county should be subject to a mechanics’ lien, the enforcement of which might deprive the county of the seat of justice established by law. The section of the act creating the right in persons having demands against the contractor to give notice thereof, so as to bind the money due the contractor, requires the notice to be given “ to the owner of such building,” and speaks of “ suit against the owner,” and of the “owner” being made a party to a suit against the contractor. The board of supervisors is in no sense the owner of the public buildings of a county. The act further provides for a general judgment, to be entered against the defendant, who has been actually served with process, with a special order for the sale of the property on which the lien exists, and for an execution for the residue unpaid, after the sale of the property; which is inapplicable to a county. We conclude that the several sections of the act are parts of a whole dependent on each other, and that the buildings meant by the expression “ such building ” used in § 1881 is one subject to the lien created by § 1378, and, as the public buildings of a county are not subject to a lien, they are not included in § 1381, and that the notice of their demands against the contractor given by different persons did not bind the money due the contractor or present any legal reason for withholding it from him at the instance of such persons, and therefore the bill is not maintainable. We have not considered the particular ground on which the demurrer was sustained by the Chancellor, because the question we have discussed overrides all others in the case, and is directly presented by the demurrer.

Decree affirmed.