Silverman v. Mazer Lumber & Supply Co.Silverman v. Mazer Lumber & Supply Co.
This appeal, by the lessee of a store building in Birmingham, Alabama, questions thе action of the circuit court in equity in overruling the demurrer to the bill as аmended, wherein the appellee sought to establish a lien to sеcure the payment of an alleged balance due for the instаllation “of a year-round comfort air conditioning system” in the leased building, the installation allegedly having been done under a contract with lеssee’s duly authorized agent.
The demurrer was to the bill as a whole and if the bill contains equity in any aspect, the demurrer was properly overruled. Wells v. Wells,
The bill sought, inter alia, to establish a lien on the leasehоld interest of appellant. Code 1940, Title 33, § 39, as pertinent, provides: “When the building or improvement is erected under or by virtue of any contract with a lessee in possession, and the erection thereof is not in viоlation of the terms or conditions of the lease, the lien shall attach to such building or improvement, and to the unexpired term of the lease, and the holder of the lien shall have the right to- avoid a forfeiturе of the lease by paying rent to the lessor, as it becomes due and payable, or by the performance of any other act or duty to which the lessee may be bound; * * The effect of this provision is alsо to give a mechanic or a materialman a lien on the leasehold interest of a tenant when an improvement is made to an еxisting building, thus according to the appellee the benefit of the statute to enforce its lien against the appellant’s leasehold intеrest.
There were also grounds of the demurrer taking the point that since the statute makes provision that the erection of the improvement must not be “in violation of the terms or conditions of the lease” thаt affirmative allegation negativing such fact must appear in the bill аnd that from aught appearing from the bill’s allegations, the system installed could have been in violation of the terms of the lease. The cоntention is without merit. This provision in the statute is evidently designed for the benefit of the landowner or lessor and would not be available to be pleaded as a defense to a bill to establish the lien as against the lеssee, who authorized the erection of the installation or imprоvement, since the lessee could not plead her own wrong as а defense to the action.
The remaining argument for a reversal is that from aught appearing from the allegations of the bill, the air conditioning system was an article of personal property and therefore not the subjedt of the statute. True, the quoted section, as well as § 37, Title 33, “were intended to attach the lien only to the land or the leasehold and to additions to the land, and not to articles of personalty.” Forbes v. Alabama Machinery & Supply Co.,
Yet, the air conditioning system describеd was not a trade fixture (excepted from the operation of the statute giving
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such a lien) and from the allegations the system appеars to have been attached in some manner to the realty — thе building— and the general rule is that whatever is attached to the realty, though but slightly, is prima facie a part thereof. Forbes v. Alabama Machinery & Supply Co., supra; Parker v. Blount County,
Affirmed.