Bedsole v. Peters

SOMEPYILLE, J. We entertain no doubt of the propriety of joining in the same complaint with the common counts those upon contract for the enforcement of a mechanic’s lien under the statute. The chapter in our Code relating to this subject provides, that the pleadings, practice, process, and other proceedings designed to enforce liens of this character, shall be the same as in ordinary civil actions, except as otherwise provided.' — Code, 1876, § 3446. The statute, moreover, expressly provides for the rendition of a personal judgment against defendant debtors, and against garnishees who are required in certain cases to answer under oath. — Code, §§ 3552, 3449. When a complaint states the facts which show both a money demand due in debt or assumpsit, and a lien, and the proof shows the correctness of the amount claimed, but fails to sustain the lien under the statute, no reason is perceived why a personal judgment may not be rendered, even though the lien is not established by the judgment.—Montgomery Iron Works v. Dorman, 78 Ala. 218; Williams v. Porter, 51 Mo. 441; Patrick v. Abeles, 27 Mo. 184; Phillips on Mechanic’s Liens, § 448. The lien sought to be enforced in this case is one for work and labor performed by the plaintiff in the erection of a steam .saw-mill, and certain fixtures and improvements connected [136] with, it, and belonging to the defendant. The lien is claimed to attach to the frame foundation of the structure, a steam-engine, a steam-boiler, and certain other fixtures and appurtenances, which are particularly described, and are stated to be situated upon a certain eighty-acre tract of land, and also to “one acre of land” in this tract, upon which these improvements are located. No other description of this particular acre of land is given, either in the complaint, or in the verified statement of the claim which was alleged to have been filed in the office of the probate judge, as required by the statute. Code, 1876, § 3444. The complaint was sufficient, in our opinion, to secure a lien upon the erection and improvements described, but not upon the acre of land upon which they were situated. The statute confers a lien in favor of mechanics, employees, and material-men, both upon the building, erection, or improvements, and upon the land belonging to the owner or proprietor on which they are situated, “ to the extent of one acre.” — Code, § 3440. It is required that any person, seeking to enforce a lien of this kind, should file a verified statement in the office of the probate judge, setting forth not only a just and true account of his money demand, after all just credits have been given, but also “ a true description of the property, or so near as to identify -the same, upon which the lien is intended to apply.” — Code, §§ 3444, 3445. The complaint must contain a like description of the property. — Code, § 3446. In the case of Montgomery Iron Works v. Dorman, 78 Ala. 218, we construed these sections of the Code to require that the particular acre of land, on which the lien is claimed, must be described with reasonable and convenient certainty — -that it should, in other words, be “pointed out and designated by a description sufficiently certain to identify and separate it from the balance of the tract,” with which it may be connected. The Missouri statute uses language identical with our own, and the Supreme Court of that State has placed on it a like construction.—Williams v. Porter, 51 Mo. 441. We can well see many inconveniences which must result from the practical application of this construction, where there several adverse claims, in each of which there may be an attempted description of the same acre with an overlapping conflict of areas. But the requirement is statutory, and we have no power to change it. It is obvious that the description in the present case, under this rule, is void for uncertainty, and as to the land the lien must fail. But it can be sustained, nevertheless, upon the building, erection, or improvements, they being described with reasonable certainty, as they clearly are in the present case. The [137] declaration is clearly made in the statute, that the lien shall be good upon these structures, “ and ” upon the land on which they are situated, to the extent of one acre. — -Code, §§ 3440, 3444. It is a several, and not a joint lien ; and both the letter and spirit of the law contemplate that the improvements erected may, in proper cases, be subjected to sale and removal from the premises by the purchaser. While special provision is made in section 3443 for the sale of improvements located on leased lands, and in section 3442 for the enforcement of the same right in preference to any prior lien, incumbrance or mortgage, which may have been placed on .the land before the erection of the improvements, the plain and natural meaning of the law'is, that the right to subject the improvements to sale shall not be lost, because by accident or negligence the plaintiff has lost his lien on the land by failure to describe it. The policy of the law is to prevent the land-owner from unjustly appropriating to his own use the labor and material of the mechanic, employee, or material-man, by reason of the merger of these values into the freehold estate. The defendant can not complain that the plaintiff enforces his lien only on what the plaintiff has placed on his premises, and not also on the premises in addition to the improvement.—Turner v. Robbins, 78 Ala. 592. In Kansas City Hotel Co. v. Sauer, 65 Mo. 279, the same view was taken of the Missouri law, of which our own is a substantial copy. The verdict of the jury, though informal, was sufficiently certain to support the judgment, so far as concerns the amount claimed. We construe it to mean, that the jury, after consideration of all the issues raised by the pleadings, find that the defendant owes the plaintiff the sum of one hundred dollars. This amount being ascertained by a jury, the court could wrnll declare the lien to exist as matter of law, under the facts in evidence. — -Code, § 3449; Ex parte Schmidt, 62 Ala. 252. This lien, however, as we have said, must be confined to the improvements, erections and fixtures, which are described in the complaint, other than the land. The judgment will accordingly be reversed, and a judgment rendered in this court in favor of the appellee, the same as that rendered in the court below, except that no lien will be declared to exist upon the land. The costs of the appeal will be taxed against the appellee.