115 So. 90 | Ala. | 1927
Lead Opinion
The appeal is from a decree overruling demurrer to the bill as last amended. The bill was filed to enforce a materialman's lien. Sections 8832, 8842, Code of 1923.
The bill and its exhibit, with the usual leave of reference, constitute the pleading of complainant, and demurrer directed thereto will be so referred and tested. The exhibit attached to the bill when treated as a part thereof on demurrer in proper circumstances aids and supplements the bill. Hogan v. Scott,
The averment that the lien is sought to be enforced upon the several lots specifically indicated as being in a city, town, or village, indicated and described as "contiguous or adjacent," is in the language of the statute and is sufficient. Section 8839, Code 1923. Contiguous means "in actual contact"; also, "near, though not in contact; neighboring; adjoining." Adjacent means "lying near, close, or contiguous; neighboring; bordering on," etc. Webster's New Int. Dict., p. 486, Latest Authentic Edition. Here no contradiction or repugnance or uncertainty in said pleading that is subject to grounds of demurrer directed thereto is presented.
Appellant challenges the bill as to the averment that the owner and proprietor of the lots improved, "sold," or "conveyed" specific lots subsequent to the commencement of the work on said building or improvement, and there is no unequivocal averment that such purchaser had notice of the existence of the lien. It cannot be said that one may purchase a newly constructed house before the time provided for the perfecting of the material and mechanics' liens thereon had expired, and defeat the purpose of the statute. It is immaterial whether such a sale was bona fide or fraudulent, the property is subject to the lien when perfected and enforced as provided by the statute.
And the fact that the work was in progress is notice to all who dealt with said property or contracted therefor with its owner that the right under the statute exists, and sales or conveyances made within the time prescribed by the statute would be subject to *162
the right. The declared priorities of section 8833 of the Code have not the effect of permitting a sale or conveyance by deed within the period of the statute that would defeat the mechanics' and materialmen's liens given by section 8832 of the Code. If something is done of a substantial and conspicuous character to make it apparent to bona fide purchasers that the building has actually commenced (Le Grand v. Hubbard [Ala. Sup.]
In Rockel on Mechanics' Liens, at page 393, § 150, it is said:
"The fact that the work is in progress (Soule v. Dawes,
In this jurisdiction it is declared that the mechanic's lien attaches and has priority over mortgages and other incumbrances given or recorded and attaching after the building or improvement was commenced. Jackson v. Farley,
And in Hanchey v. Hurley,
In Montandon Co. v. Deas,
"The terms of the contract for the erection of the building must be reduced to writing and recorded. The building of the house is an act open and notorious, and the lien is perfected upon the completion of the work, and recording of the contract. These, in the absence of a particular description of the land in the contract, are sufficient to put a prudent man upon inquiry into the existence of the lien, and to charge him without notice, more especially if, subsequent to the registration of the contract and the completion of the building, he take an assignment. It is obvious that the statute designed the erection of the building to operate as notice, from the fact that the contract is not required to be recorded until within 30 days after the erection of the same. So that the argument deduced from inconvenience of want of notice, and surprise, is not well founded."
And in Le Grand v. Hubbard (Ala. Sup.)
In Young Co. v. Stoutz Co.,
The text of 18 R. C. L. 960, § 100, is that a mechanic's lienholder is not a purchaser within the meaning of a statute which requires registration of incumbrances in order to be valid as against a purchaser for value. And on page 967, § 109, the same author says:
"When the lien statutes recognize the right to a lienfrom the date of the contract or the time of the commencementof the building or the other improvement, or from the beginningof the performance of the labor or the furnishing of material for which the lien is claimed, a lien which has thus attachedis not affected by a change of ownership during the progress of the work. In such a case a purchaser is chargeable with notice that a lien might attach to the property for the improvements." (Italics supplied.) 33 Am. St. Rep. 385; 56 Am. St. Rep. 304; 82 Am. St. Rep. 488.
In this jurisdiction the lien attaches and is created at the time the work on the building or improvement commences. Sections 8832, 8833, Code of 1923; Welch v. Porter,
The judgment of the circuit court is free from error, and is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and BROWN, JJ., concur.
Addendum
In the former argument of respective counsel, the general lien law was treated as of application. Code, § 8832 et seq. And in the mechanic's lien chapter it is expressly declared:
"All local or special laws in conflict with this article are expressly repealed." Section 8862 (4784), Code of 1923.
Such is the legislative intent, specifically declared as to its effect on Acts 1901, p. 581, notwithstanding the saving provisions of Acts 1923, p. 127, § 3, or notwithstanding the general terms of the act adopting the Code, and as affecting section 10, Code of 1907 (section 12, Code of 1923). It is a question of legislative intent for uniform lien laws. State v. Acacia Mut. Life Ass'n,
When the bill and exhibit are considered as complainant's pleading, that is challenged by demurrer, the averments thereof are in substantial conformance to the statute.
The case of Martin v. Clark,
"It is not averred in the bill when the material was furnished and the work done, though it is alleged that 'said indebtedness accrued on or about the 24th day of July, 1906.' It is not pretended that the City Loan Banking Company, as purchaser, had any notice of the complainant's claim; the contention of the complainant being that he was given a priority under the statute, either with or without notice on the part of the City Loan Banking Company. * * * A purchaser, taking as absolute owner of fee, is clearly not included within either class mentioned in the statute. He is neither lienor, mortgagee, nor incumbrancer, but the absolute owner; and if hepurchases without notice, actual or constructive, the statute gives no priority as against him. To hold otherwise would be to ingraft upon the statute a provision not within its terms." (Italics supplied.)
In the case at bar, new houses are under construction. In such case the recognized principle is that:
"The fact that the work is in progress is notice to all of the rights of the mechanic, and all conveyances made during that time are subject to the mechanic's rights." Rockel on Mechanics' Liens, p. 393, cited in the opinion in this case.
In the Martin Case, the court sought to safeguard that decision, saying:
"If he purchases without notice, actual or constructive, the statute gives no priority as against him."
When a new house is constructed, as indicated in Le Grand v. Hubbard,
The construction given our record laws as to property subject to lien removed to another county, or brought into the state and safeguarded for the time within which notice of the lien may be given by a record of the instrument creating the lien (section 6890, Code, and annotations; Finney v. Dryden,
The instant bill contained a general prayer, and that seeking a lien on the lots and each building located thereon. In Martin v. Clarke,
Application for rehearing is overruled.
ANDERSON, C. J., and SOMERVILLE and BROWN, JJ., concur.