Cochran v. Wimberly

Simeall, J. : J. J. Williamson filed his petition in the circuit court of EeSoto county, asserting a lien on a building and lands, against Wimberly and wife, other parties claiming a lien on their respective applications, were made parties plaintiffs. Pending the suit, Wimberly and wife sold and conveyed the property to Rutland, who by amended petition, was made a defendant. It appears that Wimberly had purchased the property, for the price of $18,000, from Rutland, and had given notes, in several annual installments therefor, which are specifically described in the deed. Rutland retained in the face of the deed a lien upon the property for the payment of the said several notes, having been paid six thousand dollars of the purchase money. There remained due $12,000. Wim-berly conveyed the property to his wife. [506] At the same time, there was pending a suit in the chancery-court, by Rutland against Wimberly and wife, to foreclose this equitable mortgage, and subject the land to pay the balance due upon it. The date of the deed from Rutland to Wimberly is the 16th October, 1866, recorded 27th January, 1867. The date of the deed from Wimberly to his wife, is 1st November, 1866, recorded 30th January, 1867. The deed from Wimberly and wife to Rutland is dated January, 1868. The jury found a special verdict, ascertaining what was due the several plaintiffs, the substance of the facts just recited ; and that the mechanical work and lumber was done and supplied with the consent of Mrs. Wimberly, and submitted to the court, whether the law gave a-lien on the land and house, or on the latter alone, the court declared that the lien existed on the building; condemned it to be sold and ordered special execution. It is complained in this court that they ought to have a judgment declaring a lien on the land. In the case of Buchanan v. Smith & Barksdale, 43 Miss., 90, we considered the several provisions of the mechanic’s lien law, and came to the conclusion, that in certain circumstances there might be a lien on the buildings erected, whilst there was none on the land. We held in that case, that if the premises were sold and conveyed, before suit was brought by the mechanic, or before he had filed his contract for record in the proper office, and without notice of the lien, that the purchaser took the land discharged of the lien. If a building be erected by a tenant, or other person not being the owner of the land, then the building or estate of the tenant, or other person, shall be subject to the lien, unless the building be erected with the written consent of the owner of the land. Rev. Code, 327, art. 3. The 13th article is germain to the same subject; on a sale made by the sheriff, “his deed shall convey to the purchaser, such estate therein as the owner or builder had (as the case may be), at the time when the lien under which the- sale is made attached thereon [507] subject to prior incumbrances, and shall convey the buildings in the same manner as if the buildings alone were sold. It is necessary, therefore, to see what estate Wimberly and wife, or the wife, had in this property at the time the lien attached, and also what claims or incunjbrances on it existed in favor of Rutland. Rutland had a lien as equitable mortgagee to the extent of the unpaid purchase money. Mrs. Wimberly had the legal estate, subject to this incumbrance. The special verdict finds that T. A. Wimberly contracted with Williamson, the latter part of October, and that the work was done, and materials furnished from the 1st of November, 1866, to the 1st of March, 1867. In Bell & Passmore v. Cooper, 26 Miss., 652, it was said that the lien originated from the time the contract was made. This is founded in manifest propriety ; for as said by the court, “ the mechanic, after making his contract, might proceed to provide materials at great expense, and prepare much of the work for erection, but before the same could be put upon the premises, other liens might be created, which would subject him to great loss.” The incumbrance in favor of Rutland, is prior to the lien in favor of Williamson, and would be entitled to prior satisfaction. But Rutland did not purchase back the land until after the institution of this suit by Williamson, and was a purchaser with notice of Williamson’s claim. At the date of Rutland’s purchase, the premises were incumbered with two liens, one in. his favor to the extent of $12,000, the balance of the original purchase money due to him from A. T. Wimberly, the other the lien in favor of Williamson. The latter, attached to such interest as A. T. Wimberly, or his wife, had in the land, which was the premises subject to the lien of the vendor. Rutland purchased from Mrs. Wimberly, pending his suit to foreclose his equitable mortgage, and pending this suit, to which he was a party. The defense he makes is, to rely upon his incumbrance, claiming that its existence precluded Wimberly and -wife from creating a mechanic’s lien upon it. This is true to the extent that they could impose upon the land no charge which could defeat his [508] prior equity. But subordinate to that they were competent to mortgage the premises, or impose a mechanic’s lien,, or otherwise dispose of them, coming in by purchase and assignment under Wimberly and wife. Rutland assumed precisely their attitude in respect to the mechanic’s lien. As against him, the vendor’s lien will be treated as an incumbrance, superior to Williamson’s,- and in this order the premises should be chargeable with payment. Rutland having paid, or agreed to pay, to Mrs. Wimberly, $1,500 over and above the debt due to him, thereby concedes that the property was worth that much more than his debt. That excess of value is the precise extent of the mechanic’s lien, and to that extent, the property in the hands of Rutland is liable to the mechanics. In a previous case, we have said that these proceedings are more like suits in equity than at law, and such special judgments may be rendered as will mete out justice according to. the law and the facts. Wherefore, we reverse the judgment in the special verdict, and remand the cause, with directions to subject the premises in the hands of Rutland, to the extent of $1,500, with interest from the date of his purchase, if so much shall be necessary to satisfy the amounts ascertained to be due to the several mechanics and material men.