Fulp v. Kernersville Light & Power Co.

157 N.C. 157 | N.C. | 1911

Clark, C. J.

This was a creditor’s bill brought by tbe plaintiffs, Fulp & Linville, on behalf of themselves and all other creditors of tbe Kernersville Light and Power Company, which had built a power plant, intending to furnish that town with electric power. It bought from the Greensboro Supply Company certain property, among which was a dynamo, boiler, and engine, and the necessary pipes to connect said boiler and engine with the plant. The contract under which this property was bought was dated 21 June, 1909, and title was retained by the Greensboro Supply Company till full payment. This contract was not recorded, however, till 7 September, 1909. On 10 August, 1909, the Greensboro Supply Company sold the defendant a deep-well pump and other fixtures, retaining title thereto, but this contract was not recorded till 27 October, 1909.

From 3 July to 10 September, 1908, the Kernersville Furniture Manufacturing Company and Fulp & Fulp furnished material which was used in the construction of the building to an amount less than $200 to each, and attempted to docket that lien in the clerk’s office, but the appellants claim that they failed to do so because the claims upon which the lien was based were not itemized and set out in detail upon the lien docket of the clerk. From 5 July to 4 September, 1909, Fulp & Linville also furnished materials which were used in constructing the building of defendant company, and the Crawford Plumbing Company furnished labor which was performed upon the said building, each in an amount of less than $200, and docketed their liens in the clerk’s office within the time required by the statute.

On 9 September, 1909, W. H. Clinard obtained judgments before a justice against the defendant aggregating $677.82, which he docketed on the same day in the office of the clerk of the Superior Court. These judgments were on 24 January, 1910, transferred to the plaintiff, Mary Lou Sapp. The appeal of the Greensboro Supply Company presents three grounds of exception:

1. “That the mechanic lienors, Fulp & Linville, Kernersville Furniture Manufacturing Company, Fulp & Fulp, and the Crawford Plumbing Company, cannot enforce their liens in this action in the Superior Court because each of the amounts is less than $200.”

But the Superior Court having taken charge of the entire property under its general jurisdiction by means of a creditors’ bill, bas jurisdiction to collect and dispose of all tlie assets and to determine tbe liens and priorities and to make application accordingly of tbe funds, irrespective of tbe amount of any claim. Albright v. Albright, 88 N. C., 238; Long v. Bank, 85 N. C., 356. If any creditor in sucb case should institute an independent action be would be enjoined and forced to seek bis remedy in tbe creditors’ bill. Dobson v. Simonton, 93 N. C., 270. Tbe very purpose of tbe creditors’ bill is to “discharge a multiplicity of suits and prevent a costly scramble among creditors.” Wadsworth v. Davis, 63 N. C., 253.

2. “That tbe mechanic lienors, tbe Kernersville Furniture Manufacturing Company and Fulp & Fulp, even if tbe Superior Court bad jurisdiction in this action, failed to file a valid lien, because tbe notice of tbe lien filed does not specify in detail tbe materials furnished and tbe time thereof.”

Tbe purpose of tbe statute is to give public notice of tbe plaintiff’s claim, tbe amount of it, tbe material supplied, or tbe labor done and when done, on what property, specified with sucb detail as will give reasonable notice to- all persons of tbe character of tbe claim and tbe property on .which tbe lien attached. Cook v. Cobb, 101 N. C., 70.

Tbe notice of lien here filed by tbe parties is not recorded as fully as it might be, but we think is in substantial compliance with Revisal, 2026; Cameron v. Lumber Co., 118 N. C., 266. Tbe clerk recorded tbe notice, giving each bill with its date and amount, which together made tbe amount of tbe lienor’s claims, without specifying tbe articles and tbe price of each.

Revisal, 915 (21), requires that tbe clerk shall keep “a lien docket, which shall contain a record of all notices of lien filed in bis office, properly indexed, showing tbe names of tbe lienor and lienee.” Tbe part of tbe notice which tbe clerk did enter on bis docket in each. of these instances shows tbe names of tbe lienor and lienee, tbe amount claimed by each, an accurate description of tbe property by metes and bounds, tbe dates between which tbe material was furnished, and refers to “tbe schedule of prices and material” attached to tbe notice, and asks that it “be taken as a part of this notice of lien.” Tbe appellants admit that this schedule contained a full itemized statement in detail of the material furnished and that it went into the construction of the building.

3. The last objection of the Supply Company is that the appellant having retained title to the boiler, engine, pump, dynamo, etc., by a written instrument duly recorded, is entitled to possession of said articles freed from the liens of any one.”

But for the reservation of title the above articles were clearly fixtures, and consequently realty. Horne v. Smith, 105 N. C., 322. By virtue of the agreement of the parties and the retention of the title, they remained personalty as between the parties. But as to these lienors, the retention of title was not operative, because the contract was not recorded till the work and labor were done and the material furnished out of which these liens arose. Clark v. Hill, 117 N. C., 11. There being no retention of title recorded, the parties furnishing material and labor had a right to rely upon the apparent character of such property as realty. The liens of the appellees are valid for the furnishing of any material prior to the date when the conditional sale of the articles furnished by the Greensboro Supply Company was recorded.

The judgment of Olinard was a lien on the realty from the date of its docketing, 9 September, 1909. It is therefore not a lien upon the boiler, engine, etc., as to which the contract retaining title was docketed 7 September, 1909.

As thus modified, the judgment in the appeal by the Greensboro Supply Company is affirmed.

Modified and affirmed.