Buchanan v. Smith

| Miss. | May 15, 1870

Simrall, J.:

This was a suit brought by Buchanan, against Smith and Barksdale, in the circuit court of Yazoo county, to enforce a mechanic’s lien on certain buildings on the Excelsior plantation. The claim is for work and labor done for Smith, in 1861, in sawing lumber for and erecting and building a gin house, servants cabins, and overseer’s house. The work was finished in November, 1861, and note dated 25th November of that year, for seven hundred and fifty dollars, was made and delivered by Smith to Buchanan, for the balance due. At the time the work was done, and the note executed, Smith was the owner of the Excelsior plantation, but in January, A. D. 1862, Smith sold and conveyed the plantation to Fountain Barksdale for a valuable consideration, and without notice of the lien of.Smith. There was judgment by nil elicit final against Smith. Barksdale appeared and pleaded non assumpsit, with notice that he would offer to prove that the plaintiff was not a carpenter; that the note was not executed on the day it bears date, but was made in 1865, and that the purchase was made in good faith, for value, and without notice of plaintiff’s claim. There was a verdict and judgment for defendant Barksdale.

Although the statute allows these sort of proceedings to be brought in a court of law, it evidently contemplates that the defense shall be specifically stated rather than that it should be developed by evidence under a general issue. The questions presented for decision ^re, substantially, two :

1st. That the lien asserted is barred by the six months’ statute of limitations.

2d. If it ever existed as to Smith, it does not operate as against Barksdale, he being an innocent purchaser for value.

1st. As to the elapse of time, the work was finished in November, A. D. 1861. A few days after, on a settlement had between Smith and Buchanan, the former gave his note to the latter payable on demand. The testimony was that Buchanan carried this note about his person until some time in 1865, and being much worn, he applied to Smith to give him another note of the same tenor of the original, and to be in substitution of it, which was accordingly done. It is insisted here by the plaintiff in error that he is not barred, because of a preservation of his remedy by a suspension of the statute of limitations by the act of December, 1862, the time within which he might sue not having then expired. On the other hand, the defendant in error meets and seeks to obviate this by the proposition that the suspension act of 1862 has not the force and effect of law, because the body by which it was passed was not a legislature in any sense, or for any purpose — the political power of the state being then in the hands of those hostile to, and in insurrection against, the United States.

In the case of Texas v. White, 7 Wallace, S. C. Rep., 723, the court, speaking of the legislation had in Texas, says, in substance: When the government of that state, in all its departments, was established in hostility to the United States, whilst such government had full control of the state, and was its only actual government, although such political organization was unlawful and revolutionary as to the United States; yet, for the safety of communities, and to prevent the utter confusion and disorganization into which society, in all its interests and relations would be thrown, within certain limits, and for certain purposes limited by the exigencies and necessities, “ the acts of such government must be accepted as valid.”

Enumerating some such acts, and without attempting to prescribe precise limits, the court says: “ Acts necessary to peace and good order among citizens — such, for example, as sanctioning and protecting marriage and domestic relations, governing course of descents, regulating the conveyance and transfer of property, providing remedies for injuries to person and estate, and other similar acts, which would be valid if emanating from a lawful government, must be regarded, in general, as valid when proceeding from an actual, though unlawful government. And that acts in furtherance and support of rebellion, and against the just rights of citizens must, in general, be regarded as invalid.”

Within the principle and reasoning here laid down, it is quite clear that the acts of 1862 suspending the statute of limitations have the validity of law. It was so adjudged by our predecessors in the case of Hill v. Boyland, 40 Miss. Bep., 620. The “ six months ” had not expired at the date of the act of 1862, within which suit might be brought, nor had the suspension expired on the llith day of May, 1866, when' the suit was brought.

The remaining question is: Did the purchase by Barks-dale of the Excelsior plantation without notice, protect him against the lien on the buildings?

The 1st article of the mechanics’ lien act of the Code, p. 329, gives a lien for work, labor and materials, done, performed and furnished, in and about erecting buildings, structures, etc., on the land and buildings, etc. “ But such lien on the land shall only take effect as to purchasers and incumbrances in good faith for valuable consideration, without notice of such lien, from the time of filing for record the contract in the probate clerk’s office of the county where the land is situated, or of the commencement of the suit,” etc.

The 3d art. subjects buildings erected by the tenant, and also the estate of tenant. By the 12th art. there may be a judgment against the building and land, or against the building alone, and special execution may issue describing the property to be sold.

Art. 13. If the building alone be sold, the purchaser may enter on the land, and remove the same with reasonable die-patch. By his purchase, he acquires the same, free from any prior incumbrance on the land. If the land be sold, the deed shall convey such estate therein, as the owner or builder, as the ease may be, had at the time when the lien under which the sale is made, attached thereon, or at any time after-wards, subject to all prior incumbrances, etc.

Construing the several provisions of the statute together, we think it quite clear that there- may be a lien on the buildings where there is none on the land.

The first section imparts a lien in favor of the mechanic, on both the land and the buildings. But if the land is sold, then the purchaser takes it discharged of the lien, if he bought in good faith, without notice, and for value. If there be a written contract, filed in the proper office for record, and recorded, then by a subsequent article, such filing for record is constructive notice to purchaser, and the lien subsists against him. So too, the same effect is accomplished, if the land be purchased after suit is brought. The suit asserting the lien, being in law, notice to the purchaser. The lien is purely statutory, and it was entirely competent for the legislature to create it, and place it under such conditions as it pleased.

By art. 6, suit must be brought within six months after the money becomes due and payable. If not brought within that time, the lien is gone. If the mechanic desires his Men to continue against all persons who might acquire interest in the land, then he must put the contract in writing, and file it for record in the probate clerk’s office. If suit be brought in due time, all persons supposed to liave interests in the land, must be made parties defendants, and opportunity is given them to make defense. A subsequent purchaser, as tbe defendant in error, Barksdale, is a necessary defendant, and if he shows, as has been done in this case, that he purchased fairly, without notice of the mechanic’s claim, and for value, then the land upon which the buildings are erected, is acquitted in his hands of the lien.

This is the extent to which the statute goes for his benefit and protection. Throughout, there is kept up the idea,, that there may he a lien on the improvements, whilst there is none on the land. As to the “ buildings,” the purchaser takes the risk; he is put on inquiry. If he takes the title to the 'land, without knowledge, he acts at his peril, and assumes the consequences. His deed passes to him the legal title to the land and buildings on it, subject, however, to tbe tacit “ lien ” in favor of tbe mechanic and material man on the buildings.

The counsel for defendant in error has pressed upon us the equity doctrine of “ protection of innocent purchasers,” and has referred us to the cases illustrating it. We think that doctrine and that class of cases has no application. We are considering a claim created, defined, and limited by positive statute., The same observation may suffice in response to the argument deduced from the common law of what is included in the ownership of land on its surface, and downwards towards the bowels of tbe earth. We find by tbe terms of the 1st article of the statute that at the time of the sale to Barksdale, the lien of Buchanan attached to both the houses and land, as things made and intended to he made distinct, as appears by tbe whole scope of tbe act. So that if Smith had continued owner of the'property in its entirety,!!; would have been liable to the lien. By his purchase Barksdale acquired the property free from the lien on the land. Bnt the other objects to which the lien was adhering were not, by the terms of the statute, absolved from it: This view is confirmed by reference to other provisions already referred to. There may be by the 12th article, judgment against the land and buildings, or against the building alone. The execution must describe the property to be sold. If the buildings alone are sold, the purchaser, of course, acquires no interest in the land; but he “ may enter and remove the buildings with reasonable dispatch.” In English v. Foote, 8 S. & M., 444, originating under the act of 1838, which gave the lien against the building “ in preference to any other lien originating subsequently to the eommeneement of the building or date of the contract therefor,” it was held that a building could not be subjected to this lien against a prior mortgage which bound the land on which the building was erected.

In Otley v. Hareland, Clark & Co., 36 Miss. Rep., 38, the act of 1840 (which materially enlarged the right conferred by the preceding legislation), came into discussion. Among other things, it provides that for work and labor and materials furnished upon any building, “ there shall be a lien upon the buildings and materials aforesaid, and said building and materials shall not be subject to any other lien whatsoever until the aforesaid lien shall have been canceled.” It was held by the court that this act plainly meant to make the lien of the mechanic and material man, as to the buildings and materials, paramount and superior to any lien subsisting on the land. This interpretation is made quite clear by a subsequent jiro vision “ that if there be no other lien on the lot or parcel of land on which the building is erected, it also shall be chargeable to the extent of the estate of the party procuring the improvements to be erected. We concur in the sentiment uttered in this court in 1838 in the case of Buck v. Brian, 2 How., 880.

The claims of the mechanic are favored in law. They are often unlettered men, and courts will uphold the policy in giving statutes a free interpretation in favor of the laborer. The contract in this not having been reduced to writing and filed for record in the probate clerk’s office, of Yazoo county, before the sale to Barksdale, and suit not having been brought before said sale, we are of the opinion that the land is not subject to the lien. The statute not requiring a record of the contract, or suit to enforce the lien, in order to preserve the lien on the buildings against a subsequent purchaser or incumbrancer, for value and without notice before the sale or incumbrance is made, we are further of opinion that the buildings on the premises, as against Barksdale, the defendants in error are chargeable with this lien. Wherefore the verdict and judgment in favor of the defendant in error, Barksdale, is set aside and reversed, and a, venire facias to be awarded in the court below. The judgment as to Smith will stand.