The bill in this cause was filed by the appellant seeking the enforcement of his lien as landlord on certain property located in his building, rented by him to E. W. and Laurа McDonald, who were the owners of the property in .said building, and upon which enforcement of the lien is sought. The bill shows that, while the lien was in existence and a considerable amount of the rent past due, said tenants executed а mortgage on said property, the mortgagee having notice of said lаndlord’s lien, and that the mortgagee is proceeding to foreclose sаid mortgage, which is subordinate to complainant’s lien for rent, and that such sale will tend to the destruction of the landlord’s lien. The mortgagee is made a party to the suit together with the tenants. The bill seeks to have complainant’s lien as landlord enforced and held superior to the mortgagee’s title, and temрorary injunction is prayed against the foreclosure of the mortgage pending the determination of the cause.
Temporary injunction was issued; the defendants’ motion to dissolve the temporary injunction for a want of equity in the bill wаs sustained; and complainant prosecutes the appeal from suсh decree.
The argument in support of the puling of the trial court is rested upon the insistence that, so far as appears from the bill, complainant’s remedy by attachment in a court of law is adequate, and that a court оf equity was therefore without jurisdiction. The case of Westmoreland v. Foster,
In Coffey v. Hunt,
In Mathis v. Holman, supra, section 4829, Code оf 1907 (section 8935, supra), was construed and held applicable to the enfоrcement in equity of a mechanic’s lien, and the view that such section was intended merely as declaratory of pre-existing law and practice, аnd not as creating in courts of. equity a new jurisdiction, was rejected as unsound, for, as said by the court, “Its language is clear, simple, and direct, and its purposе unmistakable.” The opinion concluded, “Moreover, this court has several times construed it, without question apparently, as giving to lien claimants a concurrent remedy in equity.” The section there construed is readopted as section 8935, Code of 1923, without change, and with such construction placed therеon, and becomes a part thereof.
In the recent case of Walls v. Skelton,
In view therefore of the express statutory provision as so construed, very clearly, complainant’s bill had equity for the enforcement of thе landlord’s lien for rent, and it was proper that those claiming other incumbrance upon the property be brought in and their rights litigated and the superiority of thе claims of the parties be determined. The temporary injunction was merеly incidental and properly issued that there may be no change in the status of the parties pending the suit. Cooper v. Cooper,
It results, therefore, that the decree dissolving the injunction for a want of еquity in the bill was erroneous. It will be here reversed and the cause remanded.
Reversed and remanded.
Notes