First Ave. C. & L. Co. v. McWilson

ANDERSON, J. -While this court has several times held that the lien given mechanics and materialmen, under section 4754 of the Code of 1907, is enforceable against the improvement or building, though lost as to the land (Salter v. Goldberg, 150 Ala. 511, 43 South. 571; Bedsole v. Peters, 79 Ala. 135; Turner v. Robbins, 78 Ala. 593), yet in each instance a contractual obligation existed between the said mechanic or material-man and the owner of the said building or improvements. It has never been held in this state that the statute gave a lien on the land or house of one who was not a party to the contract and upon whom no legal obligation rested to pay said mechanic or materialman. In fact, the statute does not give a lien on the material furnished (Lee v. King, 99 Ala. 246, 13 South. 506), but upon the land and building, one or both, and only upon the title or interest of the owner or proprietor in and to the same. Therefore, if the proprietor or debtor buys material and uses it in improving the lands of another, the statute does not fasten a lien on the land of a third person. Or, if the purchaser uses the material in erecting a building upon the land of another, under such circumstances as to render the building a fixture, and thereby it becomes a part of the realty, the owner of the land is the owner of the building, and the lien of the materialman cannot attach to a building owned by a third person, and in which the debtor has no title or interest. — Wadsworth v. Hodge, 88 Ala. 500, 7 South. 194. Under the averments of the complainant’s bill, the respondent, McWilson, did not become responsible for the debt directly or indirectly, and did not consent to or ac [281] quiesce in the erection of the house on his lot so as to justify its removal as a mere fixture. — Bolling v. Whittle, 37 Ala. 35. It is manifest that the Legislature did not intend to fix a lien upon a building erected upon the land of another and by one who had no right, title, or interest in the said land, for, if such had been the case, there was no need for sections 4756 and 4757 of the Code for the protection of a materialman when the building is erected upon leased land. Had the lien been given upon all buildings in which the materialman's articles were used, regardless of the ownership of the land or buildings, or where erected, there was no need for protecting the materialman as to buildings constructed upon leased lands. It is further demonstrated that the Legislature did not intend to fasten a lien on houses erected indiscriminately on third persons’ lands, or to abrogate the common-law rule, so as to prevent fixtures from becoming a part of the realty and thereby reserving liens in favor of materialmen in such instances, for the reason that a priority of the lien is expressly reserved by section 4755, as to the buildings, over existing liens or mortgages on the land. Had the Legislature intended to fasten a lien on the buildings regardless of ownership, or upon whose land they were placed, and meant it to remain paramount to the common-law rights of the owner to such fixtures as a part of the realty, there would be no necessity for preserving the lien when improvements are placed on leased premises or upon lands upon which liens and mortgages existed. This holding is sanctioned’ by the cases of Wadsworth v. Hodge, 88 Ala. 500, 7 South. 194, and Copeland v. Kehoe, 67 Ala. 594. There the husband purchased the material and caused the erection of the improvements on the land of the wife, and this court held that the plaintiff had no lien on the land or building, as the [282] husband had no authority to buy the material, notwithstanding the wife knew of the erection of the building and consented to same. If the court declined to declare a lien under those circumstances, the reason for not doing so in the case at bar is much stronger, as there was no relationship between the debtor and this appellee, and it does not appear that the house was put on the latter’s land with his consent. It is true that neither of these cases noted the fact that the lien could be separately enforced as to the land or building, but the Wadsworth Case was decided some time after the Peters and Turner Cases, supra, and the court would have evidently upheld the lien on the improvements, had it thought the statute was susceptible of such a construction as is now contended for by this appellant. As was said by this court in speaking of builder’s and mechanics’ liens, through Brickell, C. -J., in the Copeland Case, 'supra: “A builders’ or mechanics’ lien is purely statutory. Its character, operation, and extent must be ascertained by the terms of the statute creating and defining it. Of itself, it is a peculiar, particular, special remedy given by statute, founded and circumscribed by the terms of its creation, and the courts are powerless to take it up where the statute may leave it and extend it to meet facts and circumstances which they may believe present a case of equal merit, or a necessity of the same kind, as the cases or necessities for which the statute provides.” The case of Linck v. Meikeljohn, 2 Cal. App. 506, 84 Pac. 309, would support the appellant’s contention if the California statute is identical with ours, but which said statute is not fully set out in the opinion, and which has not been examined by us in the statutes of said state, for, if it should be identical with ours, we could not follow the holding as we find no warrant in [283] our statute for declaring a lien on a house erected on the land of another and who was an absolute stranger to the contract of purchase and was no party to the construction of said house. The statute does not create a lien which follows the material into the house of one other than the person who purchased the said material, so as to make it superior and paramount to the common-law property rights of the owner of the land, except, of course, in the instances expressly covered thereby, to wit, when the improvements and buildings are made upon leased land or when made on land of the debtor but upon which .there is an existing lien or mortgage. No provision is made for a lien, paramount to the property right of the owner of the land, upon buildings improperly erected upon his land; and, while it might meet the demands of equity and justice to authorize the removal of same or the subjection of same to the appellant’s claim, we find no statutory authority for doing so; and, as observed in effect by the lamented Brickell, we are powerless to take the subject up where the statute may leave it and extend the statute to facts and circumstances which we think may present equal merit as those covered and provided for by said statute. We do not think that section 6026 of the Code of 1907 has any application to the present case. This statute evidently deals with lines as fixed by the original government survey and does not apply to lines as fixed upon the plats and maps under the authority of article 2 of chapter 142 of the Code of 1907. Section 6026 appears in article 1 of said chapter 142 and deals with different surveys and lines from those authorized and treated in article 2. The two articles are separate and distinct; neither being dependent upon the other and each having a separate field of operation. [284] The chancery court did not err in sustaining the demurrers to the bill either before or after amendment, and the decree is affirmed. Affirmed. Mayfield, Sayre, Somerville, and de Graffenried, JJ., concur.