14 Ala. 33 | Ala. | 1848
The bill in this case is filed by James S. Deas, to enforce a lien as a builder, under the statute of 1834, (Digest, 375,) which provides “that master builders and mechanics, of every denomination, contracting in writing to put up and erect buildings, of every description, shall have a lien in the nature of a mortgage upon the tract, parcel or lot of land, upon which such building or buildings shall be put up and erected, as well as upon such building or buildings, until the price or compensation for services and for materials found, shall be fully paid and satisfied, unless a contrary stipulation be made and agreed upon at the time it is entered into: Provided always, that such lien shall not have a priority over bona Jide or legal incumbrances, existing anterior to the time of the contract being made, if said mortgages and incumbrances shall be duly recorded according to law. By the second section, the contract is required to be recorded in the clerk’s office of the county court óf the county where the building is to be erected, within thirty days after the building is erected, or the lien is declared to be inoperative.”
By the third section it is provided that “ when any judgment or decree shall be rendered in favor of any master builder or mechanic upon such contract, execution may be levied upon such tract, parcel or lot of land on which the building has been put up, as well as upon the buildings and improvements thereon erected and made, and all the right, title and interest the defendant had in and to the said lot,
The cases referred to, do not sustain the view taken by the, counsel for appellants. The case of Thaxter v. Williams, 14 Pick. Rep. 49, was an adjudication upon a statute very different from ours. In Massachusetts, the act provides for a lien in cases where the person contracting for the erection of buildings is the (owner) propriefor of the land, and the court in the case last referred to, say very properly, that the lien cannot be extended to cases where the party is “ a mere tenant or intruder.” The statute of this State provides for a sale in satisfaction of the lien of “ all the right, title and interest,” which the contracting party had at the time of the contract, and in our opinion clearly embraces leasehold as well as greater estates.
It is true, the land is not specified in the contract, but it does provide that the lease from M. D. Eslava to Chantron is pledged for the payment for the work, so that the contract by reference to the lease, may be rendered sufficiently certain. But without thisj does it follow that the land must be described in the building contract in order to create a lien? This act should receive a liberal construction, as it is but an extension of the doctrine of lien, so much favored by the courts, as consonant with every principle of equity and justice as applied to personal property. Cross on Law of Lien, 24. The intention of the act was, to give to the mechanic who had expended his labor and furnished materials in improving the ground of another, a prior right of satisfaction by a lien upon the building, and the interest of the party contracting for its erection, in the land so improved. This right is not dependent upon any peculiar provision in the contract for its existence, but is created and attaches by virtue of the statute, when the contract for building has been duly recorded. If the contract must provide for the lien, the statute would be nugatory, as this could have been done without such law — “ conventio vine,it legem.” But under the statute,
The act of 1821, which this act repeals, limited the lien to the building which was erected, or worked upon, for the services of the workmen. This act, passed in 1834, extended the lien to the lot or tract upon which the building was erected, thus remedying the defect in the former law. Aik. Dig. 308. 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,y 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 thirty days after the erection of the same. So that the argument deduced from inconvenience of want of notice, and surprise, is not well founded.
But it is asked, if a party owns a section of land, and contracts for a building on one corner of it, or fails to specify where the building shall be placed, and it is erected on one corner of the section, will the lien cover the whole, or how much of it ? I answer the whole tract, if necessary to pay the debt, and that such is the just construction of the act. If the laborer is worthy of his hire, there is certainly nothing inequitable in saying the owner shall not avail himself of the value of the fixtures without compensation to the party who erected them, and this only, such lien secures. Besides, the lien can be discharged by giving good security to the builder for .the price. Dig. 376, <§> 4.
We are unable to see any error in the record, and the decree of the chancellor is affirmed.