Opinion
5 Div. 699.
January 8, 1959.
Appeal from the Circuit Court, Lee County, Albert Hooton, J.
C. S. Whittelsey, III, and Ruth S. Sullivan, Opelika, for appellants.
Laborer's lien for work and labor attaches to land and improvements thereon and to any unpaid balance due owner's agent, and if latter is insufficient property can be condemned and sold to satisfy lien. Code 1940, Tit. 33, §§ 37, 38, 41; Crane Co. v. Sheraton Apts., 257 Ala. 332, 58 So.2d 614; Baker Sand Gravel Co. v. Rogers Plumbing Heating Co., 228 Ala. 612, 154 So. 591, 102 A.L.R. 346; 36 Am.Jur. 109, 148; Creson v. Main, 260 Ala. 318, 70 So.2d 417.
J. Sydney Cook, Jr., and Brown McMillan, Auburn, for appellees.
Under the statute the lien declared is on the unpaid balance due by owner to original contractor when lien is filed and notice given. All lien holders were in the same situation, and the trial court made proper distribution in this case. Code 1940, Tit. 33 §§ 37, 46; Avondale Lumber Co. v. Hudson, 214 Ala. 128, 106 So. 803; Crane Co. v. Sheraton Apts., 257 Ala. 332, 58 So.2d 614; Dixie Lumber Co. v. Young, 203 Ala. 115, 82 So. 129; Le Grand v. Hubbard, 216 Ala. 164, 112 So. 826.
Code 1940, Title 33, § 37 is as follows:
"Lien declared. — Every mechanic, person, firm, or corporation who shall do or perform any work, or labor upon, or furnish any material, fixture, engine, boiler, or machinery for any building or improvement on land, or for repairing, altering, or beautifying the same, under or by virtue of any contract with the owner or proprietor thereof, or his agent, architect, trustee, contractor, or subcontractor, upon complying with the provisions of this article, shall have a lien therefor on such building or improvements and on the land on which the same is situated, to the extent in ownership of all the right, title, and interest therein of the owner or proprietor, and to the extent in area of the entire lot or parcel of land in a city, town or village; or, if not in a city, town or village, of one acre in addition to the land upon which the building or improvement is situated; or, if employees of the contractor or persons furnishing material to him, the lien shall extend only to the amount of any unpaid balance due the contractor by the owner or proprietor, and such employees and materialmen shall also have a lien on such unpaid balance. But if the person, firm, or corporation, before furnishing any material shall notify the owner or his agent in writing that such certain specified material will be furnished by him to the contractor or subcontractor for use in the building or improvements on the land of the owner or proprietor at certain specified prices, unless the owner or proprietor or his agent objects thereto, the furnisher of such material shall have a lien for the full price thereof as specified in the notice to the owner or proprietor without regard to whether or not the amount of the claim for such material so furnished exceeds the unpaid balance due the contractor, unless on the notice herein provided for being given, the owner or proprietor or his agent shall notify such furnisher in writing before the material is used, that he will not be responsible for the price thereof. Such notice may be given in the following form, which shall be sufficient:
To __________, owner or proprietor:
Take notice, that the undersigned is about to furnish __________, your contractor or subcontractor, certain material for the construction, or for the repairing, altering, or beautifying of a building or buildings, or improvement or improvements, on the following described property:
________________________________________ ________________________________________
and there will become due to the undersigned on account thereof the price of said material, for the payment of which the undersigned will claim a lien."
This is a mechanic's lien case.
E. O. Jones, of Auburn, entered into a contract with one Biggs for the construction of a dwelling. Under the terms of that contract Biggs was to furnish all of the labor and materials needed for the construction of the dwelling for the sum of $13,200. Biggs defaulted after he was paid the sum of $12,200. Thereafter several lien claims were duly filed in the office of the Judge of Probate of Lee County, as required by § 41, Title 33, Code 1940. Subsequent to the filing of those claims Jones and his wife employed one Cullars to complete construction of the dwelling on a costplus basis. For his work Cullars was paid the sum of $305.22 by Jones.
Under the pleadings, which need not be described, the question before the trial court was whether the lien claimants were entitled to any relief other than their respective pro rata share of the sum of $694.98, the amount of the unpaid balance due by Jones to Biggs after deducting the sum paid Cullars for completing the work. Following a hearing wherein the testimony was taken ore tenus, the trial court answered that question in the negative, limiting the claimants to their pro rata share of the sum of $694.98. § 58, Title 33, Code 1940.
The appellants did all of the masonry work on appellees' dwelling and they have not been paid for all of their labor. They take the position here, as they did in the trial court, that they have a laborer's lien on the dwelling and on the land on which it was constructed to the full extent of their claim.
Appellants have no lien other than as provided by statute. Emanuel v. Underwood Coal Supply Co., 244 Ala. 436, 14 So.2d 151. The statute to which they must look for relief is § 37, Title 33, Code 1940, which will be set out in the report of the case.
The appellants had no contract with the owner, Jones. They were employees of Biggs, the contractor. Hence, the language of the first sentence of § 37, Title 33, limits their lien to the amount of any unpaid balance due Biggs by Jones. Appellants did not give notice to the owner, Jones, of their intention to perform labor in connection with the construction of the dwelling prior to the time they began their work; hence the provisions of the second sentence of § 37, Title 33, can be of no benefit to appellants, even if it be assumed that those provisions have application to employees of a contractor as distinguished from one who furnishes material to a contractor or subcontractor. See Crane Co. v. Sheraton Apartments, 257 Ala. 332, 58 So.2d 614.
We repeat here what was said in Copeland v. Kehoe Ramsey, 67 Ala. 594, 597, in an opinion prepared for the court by Chief Justice Brickell:
"* * * A builder's or mechanic's 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 appellants have not questioned the right of appellees to pay Cullars out of the balance due Biggs for his work in completing the dwelling.
The decree of the trial court is affirmed.
Affirmed.
STAKELY, GOODWYN and MERRILL, JJ., concur.