Opinion
6 Div. 829.
October 5, 1949. Rehearing Denied November 1, 1949.
Appeal from the Circuit Court, Jefferson County, Gardner Goodwyn, J.
Action to enforce a mechanic's or materialman's lien by Barney Gray, doing business as Barney Gray Tin Shop, against R.R. Fields and William M. McKinley. From a judgment of nonsuit, plaintiff appeals.
Affirmed.
Count A of the complaint is as follows:
Plaintiff claims of the defendants four hundred twenty-five and 75/100 ($425.75) dollars due by account on, to-wit, the 15th day of September, 1947, the date the building being remodeled was due to be completed (though the last work, labor and material furnished was on the 28th day of August, 1947), together with the interest thereon from the said 15th day of September, 1947, which is past due and unpaid. Plaintiff avers that said account represents material and/or labor furnished by plaintiff under contract with R.R. Fields, the contractor in charge of the remodeling of the building for the defendant, William M. McKinley, owner, which was furnished for and which was used in the construction or improvement or repairs of said real estate of the defendant, William M. McKinley, described as follows: * * *
And plaintiff claims a lien on the balance of the money held by William McKinley called for under said contract of construction of the house by R.R. Fields which remained unpaid on the 10th day of March, 1948, this being the date service was had upon said William McKinley in this cause, and plaintiff prays for a judgment against said William McKinley for the sum of $425.75, if said amount was still retained by said William McKinley under said contract of construction, and if there was not such sum remaining, then plaintiff prays for whatever amount remained unpaid to R.R. Fields under said contract of construction.
Count B is the same as Count A, except that the following is substituted for the last paragraph of Count A, viz:
And plaintiff avers that on the 10th day of December, 1947 he filed in the office of the Judge of Probate of Jefferson County, Alabama, Bessemer Division, a claim or lien, a copy of which is attached to the original complaint in this cause, and marked "Exhibit A", and made a part hereof, and plaintiff avers that service was had on defendant William McKinley, in this cause, together with a copy of said claim or lien filed in this cause on the 10th day of March, 1948 and that at time of service there remained an unpaid balance of to-wit: $1600.00 under the contract with said R.R. Fields, still in possession or under the control of said William McKinley, and plaintiff claims a lien on said unpaid balance to the amount of $425.75 together with a lien on said real property above described, and plaintiff prays that said lien be established and said real property be condemned for the satisfaction of said indebtedness and same be ordered sold to satisfy said indebtedness, unless same be paid.
H.P. Lipscomb, Jr., and L. Herbert Etheridge, of Bessemer, for appellant.
Where a materialman entitled to a lien under § 35, Tit. 33, Code 1940, complies with all of the requirements under Article 7 of the Mechanics' and Materialmen's Act, except § 46, requiring the giving of a written notice to the owner that he claims a lien on such building, before filing his statement in the office of the judge of probate, he should be allowed to proceed if he filed a suit ana service was had on the owner before action was barred and before the owner had settled with the original contractor, so far as to the balance remaining in the hands of the owner at the time and unpaid under the contract with the original contractor. 57 C.J.S., Mechanics' Liens, §§ 120, 121, pages 624, 626; Investors Syndicate v. Henderson, 148 Fla. 696, 6 So.2d 629; Leroy v. Reynolds, 141 Fla. 586, 193 So. 843; Vogal v. Sloan, 98 N.J. Eq. 300, 130 A. 889; Patrick v. Ballentine, 22 Mo. 143.
McEniry, McEniry McEniry, of Bessemer, for appellees.
Plaintiff must have given the notice to defendant owner as required by the statute. Code 1940, Tit. 33, § 46; Emanuel v. Underwood Coal Supply Co., 244 Ala. 436, 14 So.2d 151. Materialman's lien is a creation of the law rather than of contract, and exists only when expressly given by statute. Code 1940, Tit. 33, § 37 et seq.; Richards v. Wm. Beach Hardware Co., 242 Ala. 535, 7 So.2d 492. The amount the contractor has earned as of date of notice of lien given the owner, is the unpaid balance subject to lien within the statute. Butler v. Hawk, 221 Ala. 347, 128 So. 451; Standard Sanitary Mfg. Co. v. Aird, 221 Ala. 520, 129 So. 285. General equitable principles cannot be made the basis of a lien in favor of a materialman. Code 1940, Tit. 33, § 47; Buettner Bros. v. Good Hope Missionary Baptist Church, 245 Ala. 553, 18 So.2d 75.
The complaint below, filed by a party who was not an original contractor, was to enforce a mechanic's lien on real property owned by the defendant William M. McKinley, allegedly arising out of the installation of a furnace on said property by R. R. Fields, a general contractor.
The complaint was originally in one count. Demurrers being sustained to this count the complaint was amended by adding counts A and B.
Demurrers were filed to these counts, and by the court sustained. The plaintiff thereupon took a nonsuit and perfected his appeal to this court.
The fourth ground of said demurrers is that:
"For it does not appear that this defendant was ever given notice required by law to fasten a lien on the premises described in the complaint."
A mechanic's and materialman's lien exists by virtue of Section 37, Title 33, Code of Alabama 1940.
Under Section 41, Title 33 of the Code, it is the duty of every person entitled to such lien to file a verified statement in the office of the probate judge of the county in which the property is situated containing certain information mentioned in said section. Section 42, Title 33 of the Code, sets certain time limits within which the different types of lien claimants must file such notice in the probate office, and the time limit in which suit must be brought for the enforcement of such lien.
Where the lien is claimed by other than the original contractor, Section 46, Title 33, of the Code, imposes an additional duty on such lien claimant. This section provides:
"Every person, except the original contractor, who may wish to avail himself of the provisions of this article, shall before filing his statement in the office of the judge of probate, give notice in writing to the owner or proprietor, or his agent, that he claims a lien on such building or improvement, setting forth the amount thereof, for what, and from whom it is owing; and after such notice, any unpaid balance in the hands of the owner or proprietor shall be held subject to such lien. But the provisions of this section shall not apply to the case of any material furnished for such building or improvement, of which the owner was notified in advance as provided in section 37 of this title."
Neither count of the complaint avers that the notice specified in Section 46, supra, was ever given to the defendant William McKinley.
The appellant argues however that such notice is not essential where, as in this case, he has filed the verified notice in the probate office as required by Section 41, provided an unpaid balance remains in the hands of the property owner at the time suit is filed, the complaint containing a copy of the notice filed in the probate office.
The lien of a mechanic or materialman is neither a right in nor to the property. Sorsby v. Woodlawn Lumber Co., 202 Ala. 566, 81 So. 68. Such lien did not exist at common law, and being in derogation thereof its enforcement depends upon compliance with all substantial matters of the statute. Snellings Lumber Co. v. Porter, 225 Ala. 164, 142 So. 560.
Very clearly Section 46, supra, provides that "Every person, except the original contractor, who may wish to avail himself of the provisions of this article (the perfection of a mechanic's or materialman's lien) shall before filing his statement in the office of the judge of probate, give notice in writing to the owner * * *."
The imperative and mandatory character of this provision could hardly have been expressed in more explicit language.
While appellant's counsel has cited cases from three other jurisdictions tending to support his contention, little precedential value can be attached to such cases because of the dependence of their conclusions on the statutes of the particular states in which they arose. The inquiry in all such cases is, what is the legislative will and intent as expressed in the statute. Ex parte Schmidt, 62 Ala. 252.
In the following jurisdictions, and perhaps others, having statutory provisions somewhat analogous to ours, the courts have concluded that the filing of notice with the owner, where the lien claimant was not an original contractor dealing directly with the owner, is essential to the perfection of a mechanic's lien. Parker v. Tilghman V. Morgan, Inc., 170 Md. 7, 183 A. 224; Saginaw Lumber Co. v. Stirling, 305 Mich. 473, 9 N.W.2d 680; Bailey Lumber Co. v. Ball, 124 W. Va. 340, 20 S.E.2d 241; Meier v. Harney Duffy, 99 Pa. Super. 229; Hayden v. Tyler Oil Corp., Tex.Civ.App. 6 S.W.2d 777; L. J. Mueller Furnace Co. v. Dreibelbis, Mo. App., 229 S.W. 240.
Furthermore, we think the following language of Bouldin, J., in Le Grand v. Hubbard, 216 Ala. 164, 112 So. 826, 828, conclusive of the question of the correctness of the court's rulings on the demurrers in this case:
"The provisions * * * of Section 8840 (now Sec. 46, Title 33, Code of 1940), requiring notice in writing to the owner * * * are for the protection of the owner. * * * Until such notice given, the lien remains inchoate or potential as a lien on specific property, as all liens declared remain inchoate until the required statement is filed in the office of the Judge of Probate."
It is our conclusion therefore that the lower court's rulings on the demurrers to the counts in this complaint were correct, and this cause is due to be affirmed. It is so ordered.
Affirmed.