62 So. 531 | Ala. | 1913
-While this court has several times held that the lien given mechanics and materialmen, under section 4754 of the Code of 1907, is enforceable against the improvement or building, though lost as to the land (Salter v. Goldberg, 150 Ala. 511, 43 South. 571; Bedsole v. Peters, 79 Ala. 135; Turner v. Robbins, 78 Ala. 593), yet in each instance a contractual obligation existed between the said mechanic or material-man and the owner of the said building or improvements.
It has never been held in this state that the statute gave a lien on the land or house of one who was not a party to the contract and upon whom no legal obligation rested to pay said mechanic or materialman. In fact, the statute does not give a lien on the material furnished (Lee v. King, 99 Ala. 246, 13 South. 506), but upon the land and building, one or both, and only upon the title or interest of the owner or proprietor in and to the same. Therefore, if the proprietor or debtor buys material and uses it in improving the lands of another, the statute does not fasten a lien on the land of a third person. Or, if the purchaser uses the material in erecting a building upon the land of another, under such circumstances as to render the building a fixture, and thereby it becomes a part of the realty, the owner of the land is the owner of the building, and the lien of the materialman cannot attach to a building owned by a third person, and in which the debtor has no title or interest. — Wadsworth v. Hodge, 88 Ala. 500, 7 South. 194.
Under the averments of the complainant’s bill, the respondent, McWilson, did not become responsible for the debt directly or indirectly, and did not consent to or ac
The case of Linck v. Meikeljohn, 2 Cal. App. 506, 84 Pac. 309, would support the appellant’s contention if the California statute is identical with ours, but which said statute is not fully set out in the opinion, and which has not been examined by us in the statutes of said state, for, if it should be identical with ours, we could not follow the holding as we find no warrant in
We do not think that section 6026 of the Code of 1907 has any application to the present case. This statute evidently deals with lines as fixed by the original government survey and does not apply to lines as fixed upon the plats and maps under the authority of article 2 of chapter 142 of the Code of 1907. Section 6026 appears in article 1 of said chapter 142 and deals with different surveys and lines from those authorized and treated in article 2. The two articles are separate and distinct; neither being dependent upon the other and each having a separate field of operation.
Affirmed.