78 Ala. 218 | Ala. | 1884
The statute gives to “ every mechanic, or other person, who shall do or perform any work or labor upon, or furnish any materials, fixtures, engine, boiler, or machinery, for any building, erection, or improvement upon land, or repairing the same, under or by virtue of any contract with the owner or proprietor thereof,” upon complying with the provisions of the statute, a lien on such building, erection or improvement, and upon the land belonging to such owner or proprietor, on which the same are situated, to the extent of one acre, if such building, erection, or improvement is not on any lot in any town, city or village. — Code, § 3440. To acquire the lien, the contractor is required, by section 3444, to file with the judge of probate, within six months after the indebtedness has commenced, “ a just and true account of the demand due him, after all just credits have been given, which is to be a lien upon such building, or other improvements, . . and a true description of the property, or so near as to identify the same, upon which the lien is intended to apply,” which must be verified.
The purpose of the statute, in requiring the claim to be filed with the judge of probate, is to give notice to purchasers and creditors. Eor this purpose, the description of the property, on which the lien is claimed, is material. It should be sufficiently certain to designate the property to be charged. It is sufficient, if the description points out the premises, so that, by applying it, the land can be identified. The language of the statute is, “ a tn'ue description of the property, or so near as to identify the same.” Convenient and reasonable certainty is requisite. When the lien on the land is to the extent of one acre, and the tract of land contains more acres than one, the particular acre on which the lien is charged must be pointed
The claim, as filed with the judge of probate, is not sufficiently averred in the complaint. It should have been substantially set out, so that the court can determine whether the provisions of the statute have been complied with. Conclusions are not sufficient. But, assuming that the description in the claim corresponds with that in the complaint, -it is fatally defective. The lien is sought to be charged on the land on which a saw-mill and tram-road four miles in length are situate, and no attempt is made to point out and designate the one aere, to which the lien extends. No materials were furnished for, or labor done on the saw-mill; and the materials furnished for the tram-road and the cars, on which the repairs were made, are not described so as to identify them." The description is no notice to a purchaser or creditor of the property to be charged, and does not inform the court what property to order sold.
Without deciding, at present, whether, when the action is not on a penal bond or other writing (Code, § 2981), a demurrer can be interposed to a part of a complaint, or whether such demurrer will be considered as equivalent to a motion to strike out, the plaintiff has no cause to complain that final judgment was rendered. After striking out that part of the complaint which claimed a lien, the common counts were left, sufficient to authorize a personal judgment against the defendant. The plaintiff did not insist on proceeding with the case; neither did the court refuse to permit it. As shown by the record, the plaintiff declined and refused to proceed further, because of the ruling of the court on the demurrer. There was nothing for the court to do but to render judgment.
Affirmed.