Opinion
2 Div. 202.
March 1, 1945.
Rehearing Denied March 29, 1945.
Appeal from Circuit Court, Hale County; W. E. Callen, Judge.
Fred G. Moore, of Birmingham, for appellants.
The jurisdiction of suits to enforce mechanics' and materialmen's liens of the nature involved in this suit is in the county in which the land lies. Code 1940, Tit. 33, § 48. If the bill shows on its face that complainant has no lien on the land in Hale County, or on the leasehold interest in the land, then the circuit court of Hale County, in equity, is without jurisdiction as to respondent Hancock, since he is a resident of Jefferson County. A lien of this character is of peculiar statutory creation, and circumscribed by the terms of its creation. Code, Tit. 33, § 37 et seq. Copeland v. Kehoe, 67 Ala. 594; First C. C. P. Church v. W. D. Wood Lbr. Co., 205 Ala. 442, 88 So. 433; Crawford v. Sterling, 155 Ala. 511, 46 So. 849; Snellings Lbr. Co. v. Porter, 225 Ala. 164, 142 So. 560; Emanuel v. Underwood Coal Supply Co., 244 Ala. 436, 14 So.2d 151; Richards v. William Beach Hdw. Co., 242 Ala. 535, 7 So.2d 492. Strict compliance with the statute is required. Gilbert v. Talladega Hdw. Co., 195 Ala. 474, 70 So. 660; Cook v. Rome Brick Co., 98 Ala. 409, 12 So. 918; Bennett Realty Co. v. Isbell, 219 Ala. 318, 122 So. 337. Prior to amendment of statute in Code of 1923, § 8832 (Code 1940, Tit. 33, § 37) there could be no single or blanket lien on several lots or parcels of land and the buildings therein, even when erected under one general contract. Crawford v. Sterling, 155 Ala. 511, 46 So. 849; Robinson v. Crotwell Bros. Lbr. Co., 167 Ala. 566, 52 So. 733; Cook v. Rome Brick Co., supra; Leftwich Lbr. Co. v. Florence Mutual B., L. S. Ass'n, 104 Ala. 584, 18 So. 48; College Court R. Co. v. J. C. Letcher Lumber Co., 201 Ala. 362, 78 So. 218; Wade v. Wyker, 171 Ala. 466, 55 So. 141; Cocciola v. Wood-Dickerson Supply Co., 136 Ala. 532, 33 So. 856; Williams v. Porter, 51 Mo. 441; Fitzgerald v. Thomas, 61 Mo. 499.
The statute provides for the method of selection of land in which the building or improvement is situated, when not in a city, town or village, and exceeds in area one acre. The bill avers that the land is not in a city, town or village, but attempts to construe the statute as applying to "entire plant or concern" even though not in a city, town or village. Eufaula Water Co. v. Addyston P. S. Co., 89 Ala. 552, 8 So. 25; Grimsley v. First Ave. C. L. Co., 217 Ala. 159, 115 So. 90; Tallapoosa Lbr. Co. v. Copeland, 223 Ala. 41, 134 So. 658, 75 A.L.R. 1325; College Court R. Co. v. J. C. Letcher Lbr. Co., supra; Crawford v. Sterling, supra; Leftwich Lbr. Co. v. Florence Mutual B., L. S. Ass'n, supra. The burden is upon complainant to show value of material which went into each particular building or balance due for same. Authorities, supra. The statute provides for notice to owner when lien is claimed by one other than contractor, and that statement of lien filed in probate office show the name of the owner of the particular tract of land. Code, Tit. 33, §§ 41, 46; College Court R. Co. v. J. C. Letcher Lbr. Co., supra; Copeland v. Kehoe, supra; First C. C. P. Church v. W. D. Wood Lbr. Co., supra; Fowler v. Mackentepe, 233 Ala. 458, 172 So. 266; Snellings Lbr. Co. v. Porter, supra. The statute provides the method of procedure when the building is on leased land. Code, Tit. 33, § 39; Harden v. Wood Lbr. Co., 235 Ala. 310, 178 So. 540.
The houses are fixtures, and follow the land, and the court protects the lessor whether a party or not. Harden v. Wood Lbr. Co., supra; Roman v. Thorn, 83 Ala. 443, 3 So. 759; Taylor v. McGill, 205 Ala. 458, 88 So. 564.
Winston Withers, of Greensboro, and Jones, Dominick McEachin and L. C. Bell, all of Tuscaloosa, for appellee.
Jurisdiction of suit to enforce materialmen's lien, where amount involved exceeds $50, is in county in which property is situated, or in county where material defendant resides. Code 1940, Tit. 7, §§ 46, 294. Where improvements are made on separate, distinct tracts operated as entire plant or concern, and erected under one general contract, the lien will attach to all such constructions or improvements together with land upon which they are situated. Code, Tit. 33, §§ 39, 45; Lupton's Sons Const. Co. v. Hugger Bros. Const. Co., 227 Ala. 25, 148 So. 610; Central Lbr. Co. v. Schilleci, 227 Ala. 29, 148 So. 614. When building or improvement is erected on lands under or by virtue of contract with lessee in possession, and same is not in violation of terms of lease, lien will attach to buildings or improvements and unexpired term of lease. Code, Tit. 33, § 39; Harden v. Wood Lbr. Co., 235 Ala. 310, 178 So. 540; Wood Lbr. Co. v. Greathouse, 226 Ala. 644, 148 So. 125; Id., 230 Ala. 362, 161 So. 236. Person furnishing material to contractor for erection of building or improvement on land under lease, or by virtue of contract with owner or proprietor, has lien on unpaid balance due contractor by owner or proprietor of land. Code, Tit. 33, § 37; Baker Sand Gravel Co. v. Rogers Plbg. H. Co., 228 Ala. 612, 154 So. 591, 102 A.L.R. 346; Nunnally v. Dorand, 110 Ala. 539, 18 So. 5; Martin v. Holtville High School Bldg., 226 Ala. 45, 145 So. 491; Le Grand v. Hubbard, 216 Ala. 164, 112 So. 826; B. R., L. P. Co. v. Milbrat, 201 Ala. 368, 78 So. 224; Lupton's Sons Const. Co. v. Hugger Bros. Const. Co., supra. Purpose of filing statement of lien in office of probate judge is to give notice to owners or proprietors and purchasers and creditors of existence of lien, and statement filed in this case is sufficient. Code, Tit. 33, § 41; College Court R. Co. v. Letcher Lbr. Co., 201 Ala. 362, 78 So. 218; Grimsley v. First Ave. C. L. Co., 217 Ala. 159, 115 So. 90; Bennett Realty Co. v. Isbell, 219 Ala. 318, 122 So. 337; Tallapoosa Lbr. Co. v. Copeland, 223 Ala. 41, 134 So. 658, 75 A.L.R. 1325; Fowler v. Mackentepe, 233 Ala. 458, 172 So. 266. Bill shows compliance with § 41 and avers an unpaid balance due materialman by contractor and claims lien on unpaid balance due contractor and circuit court of Hale County has jurisdiction. Code, Tit. 33, §§ 37, 39, 48; Le Grand v. Hubbard, supra; Martin v. Holtville High School Bldg., supra. Plea in abatement is insufficient. A. C. L. R. Co. v. Ballard, 202 Ala. 354, 80 So. 436; Ex parte Hale, ante, p. 40, 18 So.2d 713.
Contractor insisting upon delivery without compliance with contract specifications to induce quick delivery waived compliance with specifications and is estopped to claim breach. 55 C.J. 438, 440, 443; Burnett Cigar Co. v. Art Wall Paper Co., 164 Ala. 547, 51 So. 263; H. C. Schrader Co. v. Bailey Grocery Co., 15 Ala. App. 647, 74 So. 749; Id., 201 Ala. 79, 77 So. 373; McCaa v. Elam Drug Co., 114 Ala. 74, 21 So. 479, 62 Am.St.Rep. 88. All presumptions are in favor of finding of trial court. Ex parte Jackson, 212 Ala. 496, 103 So. 558; Ex parte State ex rel. Altman, 237 Ala. 642, 188 So. 685; Mitchell v. Kinney, 242 Ala. 196, 5 So.2d 788; 2 Ala.So.Dig., Appeal and Error, 931.
This appeal is from the final decree of the Circuit Court of Hale County, sitting in equity, ascertaining the balance due from the contractor to the complainant, the materialman, for lumber, and materials furnished to and used by the contractor in the construction of fifty-four tenant houses in pursuance of a single contract, between Hancock, the contractor, and the lessee, the Black Belt Cooperative Leasing Association, a corporation, on premises in the possession of the lessee under several twenty year leases, from five different groups of freeholders, ascertaining that there was a balance due from the lessee to the contractor, and declaring a lien on said balance and the leasehold estate or interest of the lessee. Pizitz-Smolian Co-op. Stores v. Randolph, 221 Ala. 458, 129 So. 26. The freeholders were all made parties defendant, and appeared and filed demurrers to the bill. The lien was not extended to the improvements, and the interest of the freeholders was not affected by the decree, and they have raised no question in respect to its soundness.
The respondents Hancock and the Black Belt Cooperative Leasing Association have appealed, and have been granted leave to sever, in the assignment of error.
The appellant Hancock filed a plea to the jurisdiction of the court joining in the plea, "The Southern Engineering Company," under which he, as an individual, engaged in business, alleging: (1) That he and his business name were bona fide residents of Jefferson County, and had been since the filing of the bill, and a long time prior thereto, and that the bill of complaint shows on its face that the only cause of action, if any, which complainant has against said respondents, "is an action at law, and that the Circuit Court of Jefferson County, Alabama, which is the Tenth Judicial Circuit of Alabama, has jurisdiction of such action at law, and the Circuit Court of Hale County, Alabama, does not have jurisdiction of the same." (2) That the facts alleged in the bill are not sufficient to invoke the jurisdiction of the Circuit Court of Hale County, in Equity, "in that the same shows on its face that the complainant has only a cause of action on the law side of the docket of this court, if any, and the respondents named above are all bona fide residents of Jefferson County, Alabama."
The plea stated additional grounds, in substance, the same as above.
This plea in substance and legal effect goes to the merits of the bill, not to the jurisdiction of the court. The court did not err in overruling said plea. Scharfenburg v. New Decatur, 155 Ala. 651, 47 So. 95; Prowell v. Wilson, 219 Ala. 645, 123 So. 38; Maryland Casualty Co. v. Mayfield, 225 Ala. 449, 143 So. 465. Nor did the court err in overruling the demurrer of appellants to the bill as last amended. Its averments are sufficient to justify the court in taking jurisdiction to enforce a materialman's lien against the unpaid balance due on the contract in the hands of the lessee for the construction of the several tenant houses, and the leasehold interest of the lessee. Harden v. Wood Lumber Company, 235 Ala. 310, 178 So. 540; Code 1940, Tit. 33, §§ 39 and 40.
The verified statement of the claim filed in the office of the judge of probate under Section 41, Title 33, Code 1940, is a substantial compliance with the said section, and the case was clearly within the jurisdiction of the Hale County Circuit Court, the county in which the land was situated, and in which some of the material defendants resided. Code 1940, Tit. 33, § 48; Tit. 7, § 54.
The real controversy between the parties is raised by the defendants' assertion that all of the lumber furnished was not kiln dried and did not meet the specifications of the contract between the complainant and the contractor, and the complainant's answer thereto that the contractor and his authorized agent repeatedly urged immediate delivery of the lumber, though not completely kiln dried. If there was a breach of the contract in this respect, it was superinduced by the contractor, and inasmuch as he accepted the lumber and used it, he is estopped to assert such breach. On this issue the evidence was in sharp conflict. Most of the evidence was given ore tenus, and the trial court had ample opportunity to observe the manner and conduct of the witnesses, and was in better position than we to judge of their credibility.
After due consideration, we are unable to affirm that the conclusions stated in the decree are contrary to the great weight of the evidence. Ex parte Jackson, 212 Ala. 496, 103 So. 558; Mitchell v. Kinney, 242 Ala. 196, 5 So.2d 788; Marsh v. Elba Bank Trust Co., 205 Ala. 425, 88 So. 423.
There is no error on the record.
The decree is affirmed.
GARDNER, C. J., and LIVINGSTON and SIMPSON, JJ., concur.