48 So. 371 | Ala. | 1909
The bill in this case was filed by the appellees against the appellants, seeking to enforce a lien for attorney’s fees. The facts, in substance, are thatnone of the defendants — Martha A. Worley, as administratrix of the estate of Benjamin L. Worley, in accordance with a verbal agrément previously made by said Martha A. and M. V. Worley, who were the only
The first question Avhich presents itself is Avhether the lien provided for by section 3011 of the Code applies to causes of aciion which were in progress Avhen said sec lion became a law. ll may be stated, as a general proposition, that there is no section in our Constitution Avliich prohibits the enactment of a retroactive law.— Aldridge v. Tuscumbia, etc., R. R., 2 Stew. & P. 199, 23 Am. Dec. 307; Lindsay v. United States Savings, etc. Ass’n., 120 Ala. 168, 24 South. 171, 42 L. R. A. 783. Section 22 of our Constitution of 1901 expresses the only limitation in that line, and our courts have held that “ex post facto” laws are necessarily penal laws; so that, unless a Iuav impairs the obligation of a contract, or deprives the citizen of some vested right, or is obnoxious to some other provision of the Constitution, the mere fact that it is retroactive does not render it unconstitutional. The general rule is that a law Avill not be construed as having a retroactive effect unless it is plain from its terms that the Legislature so intended. — Smith v. Kolb et al., 58 Ala. 645. It was held in the case just cited that the act amending the statute in regard to mechanics’ liens did not have any retroactive effect. The retroactive statutes AAdiich have been recognized as valid 'have been mainly acts affecting merely the remedy; but when'an act fixes a lien upon a citizen’s property, which did not exist before, as the result of a contract already made ,while it does not impair the obligation of the contract, yet, on the contrary, it increases the burden of the
• In our own court, in a case wherein it declared unconstitutional a mechanics’ lien law, which made the fact that the person performing labor was not notified in writing not to perform it prima facie evidence that it was by and with the owner’s consent that such labor was performed, the court quotes with approval from the case of Meyer v. Berlandi, 39 Minn. 438, 40 N. W. 513, 1 L. R. A. 777, 12 Am. St. Rep. 663, these words: “As liens are an incumbrance upon the owner’s property, it is fundamental that they can only be created by his consent or authority. No man can be deprived of bis property without his consent, or by due porcess of law.” — Randolph v. Builders’ & Painters’ Supply Co., 106 Ala. 501, 512, 17 South. 721. And in a later case, on the mechanic’s lien law, the same quotation is made. —Selma Sash, etc., Factory v. Stoddard, 116 Ala. 251, 253, 22 South. 555. This court also said, referring to the principle that a mechanic’s lien could not have precedence of a prior mortgage on the land: “To hold that a subsequent contractor or materialman could acquire a lien which would take precedence over an intervening incumbrance * * would shock the moral sense of the profession and fail to carry out the intention of the Legislature.”- — Wimberly v. Mayberry & Co., 94 Ala. 246, 10 South. 157, 14 L. R. A. 305; Welch v. Porter, 63 Ala. 232.
It would involve the same principle to hold that the Legislature could import into a contract already made a provision fixing a lien on the property of the contract-
It results that section 3011 of the Code of 1907 does not apply to the claim in this case, and that the appellees have no lien upon the cause, or upon the proceeds thereof, under said section. However, section 4183 of the Code, of 1896 (section 6085, Code 1907) provides that an administrator “may render the estate in his hands, to be administered, liable for the payment for necessary services rendered to him, * * if he be or become insolvent, without making payment, and has not charged the estate with, and obtained credit for such services.” And the succeeding section provides for the enforcing of said liability by proceedings in the chancery court against said administrator or his successor.
It is insisted by the appellants, as a reason for sustaining the demurrer, that, while the bill alleges that Martha A. Worley is insolvent, it does not allege that Susie E. Leahart, M. Y. Worley, or the Southern Railway Company is insolvent. There is no merit in this contention. The statute requires only that the administrator who made the contract or incurred the liability shall be insolvent. The evident reason of this is that, if he is not insolvent, he is liable personally for the claim.
The bill seeks,- first, that “the estate of Benjamin L. Worley, deceased, be decreed liable for the fees due them [complainants] for services,” etc.; and, second that their lien be declared and enforced. The demurrers point out objections only to the liens, and yet are directed against the entire bill, and as to the second prayer of the bill there is equity. Consequently the demur
The question of tlie- misjoinder of parties is not included in either cause of demurrer.
The decree of the court is affirmed.