These terms have been construed to mean that the lien extends to such property of the tenant as is brought upon and enjoys the protection of the premises and used by the tenant in connection with, and enjoyment of, such premises. Mathers v. Barrow, 202 Ala. 342, 80 So. 424. It extends to "mules, cows or other personal property belonging to the tenant, kept on the lot" [hotel property] and used in connection with it. Stephens v. Adams, 93 Ala. 117, 9 So. 529. This lien attaches to such property as soon as it is brought upon the premises, and extends to the amount of the rent for the entire term of the lease contract, from the commencement of the tenancy for the security of the rent when it matures. Nicrosi v. Roswald, 113 Ala. 592, 21 So. 338; Andrews Mfg. Co. v. Porter, 112 Ala. 381, 20 So. 475.
The remedy by attachment for enforcing a landlord's lien is cumulative, and, whether adequate or inadequate, does not affect the jurisdiction of equity in enforcing liens. Code 1923, § 8935; Leader v. Romano, 208 Ala. 635, 95 So. 7; Mathers v. Barrow, 202 Ala. 342, 80 So. 424; Greil Bros. v. Montgomery, 182 Ala. 291, 62 So. 692, Ann. Cas. 1915D, 738; Carmen v. Ala. Nat. Bank, 101 Ala. 192, 13 So. 581; Tierce v. Knox, 207 Ala. 121, 92 So. 263; Bynum Mer. Co. v. Bank, 187 Ala. 281, 65 So. 815; Henderson v. Steiner-Lobman, 202 Ala. 325, 80 So. 407; Wilkins v. Folsom, 208 Ala. 24, 93 So. 547. The injunction should have been retained until the rights of the parties had been disposed of. Town of Clio v. Lee, 199 Ala. 145, 74 So. 243; Thompson v. Johnson, 201 Ala. 315, 78 So. 91; Woodstock v. Quinn, 201 Ala. 681, 79 So. 253; Cooper v. Cooper, 201 Ala. 475, 78 So. 381. Knox, Dixon, Sims Bingham, of Talladega, for appellees.
The case of Watts v. Sweeney, 127 Ind. 116, 26 N.E. 680, 22 Am. St. Rep. 615, was noted in the Mixon Case, supra, as an illustration of the doctrine that, in some instances, by the very circumstances of the case, as to property left by the mortgagee in possession of the mortgagor for some indefinite time with a knowledge of the necessity of repair for its continued use, preservation, and maintenance of its value as security, the incurring of such charges by the mortgagor may be held as having been done under the implied authority of the mortgagee, and this though the mortgagee had no actual notice of such repairs at the time. Reference to this authority is also found in Mathers v. Barrow, 202 Ala. 342, 80 So. 424. But this court, in the Walden Case, supra, declined to extend this doctrine to the facts there presented, which, so far as the legal question involved is concerned, is analogous to the instant case, and held that, as the mortgagee had no notice of such repairs, his title must prevail.
It is averred that the sewing machine was brought upon the rented premises "by the defendants," and that it was kept by the tenant in the dwelling he rented from complainant. Leader v. Romano, 208 Ala. 635, 95 So. 7; Mathers v. Barrow, 202 Ala. 342, 80 So. 424. The bill further avers that the purchase price of the machine was not fully paid by the tenant, and it was removed from the rented premises by the Singer Sewing Machine Company a few days before the tenant quit the premises, without the knowledge or consent of the landlord; that when complainant learned the fact of priority of the claim or interest of the Singer Sewing Machine Company, he offered to pay the balance due on the purchase price, which was refused. The case of Alford v. Singer Sewing Machine Co., 17 Ala. App. 325, 85 So. 584, was a law case, and in that case no part of the purchase price had been paid by the purchaser and tenant; it does not control this decision.
24 Colo. App. 74, 131 P. 791; 164 Iowa, 8, 144 N.W. 346; 24 R. C. L. 474; 11 R. C. L. 1072; 12 Idaho, 352, 86 P. 529, 10 Ann. Cas. 107. Where a tenant forfeits his lease, he has not even the right of emblement. 73 Ala. 59; 24 Cyc. 1071. The removal of trade fixtures expires with the termination of the lease. 202 Ala. 525, 81 So. 27; 188 Ala. 326, 66 So. 54, L.R.A. 1915A, 654; 19 Cyc. 1065; 168 App. Div. 112, 153 N.Y. Supp. 728. Landlord's lien is not dependent on attachment. 204 Ala. 295, 85 So. 489; 202 Ala. 342, 80 So. 424; 113 Ala. 596, 21 So. 338; 160 Ala. 363, 49 So. 391. THOMAS, J.
Under the evidence in the instant case he had the right to first apply payments to the lien indebtedness. Title 31, Sec. 15, Code 1940; Hamilton v. Maas, 77 Ala. 283; Leslie v. Hinson, 83 Ala. 266, 3 So. 443; Reynolds v. Hardee, 193 Ala. 454, 69 So. 553; First National Bank of Gadsden v. Burnett, 213 Ala. 89, 104 So. 17; A. Burkart Co. v. Bell et al., 24 Ala. App. 516, 137 So. 322. The prior lien that the appellee enjoyed by virtue of the advances was complete, and his superior advantage did not depend on a resort to a court of law to enforce it. Mathers v. Barrow, 202 Ala. 342, 80 So. 424; Nickleson v. Lofton et al., 16 Ala. App. 672, 81 So. 192. The liens incident to the advances having been fully satisfied, it was then incumbent upon the landlord to apply the balance of the funds in his hands from the tenant's share of the proceeds of the cotton to the mortgage indebtedness.
The other appellees do not testify to anything tending to show that anybody, other than Stewart, ever expressed an intention of paying them for their work. The timber from which the lumber in question was made belonging to appellant, Stewart, as an independent contractor, manufacturing said lumber, appellees being employees of Stewart, to whom appellant had paid the full amount due him, this suit by appellees against must fail. Allen et al. v. Clayton et al., 208 Ala. 29, 93 So. 658; Mathers v. Barrow, 202 Ala. 342, 80 So. 424. As, without a binding promise to pay them, it would fail, even if Stewart had not been fully paid, only, if there was a balance due Stewart by appellant, appellees could, in the appropriate way, have reached it. Unnecessary to mention, but obvious, as bearing on the fatal invalidity of the judgment appealed from, is the fact that the undisputed testimony in this case is to the effect that the lumber "attached" by the sheriff, etc., was not the lumber manufactured by Stewart at all.
Where property, as machinery, is to be retained and used by the mortgagor for a long period of time, it will be presumed to have been the intention of the parties to the mortgage that it is to be kept in repair, and, when the property is of such character as to render it necessary to intrust it to a mechanic to make repairs, the mortgagor will be constituted the agent of the mortgagee to have such repairs made, and the lien of the mechanic is paramount to that of the mortgagee. Partlow-Jenkins Motor Co. v. Stratton, 71 Ind. App. 122, 124 N.E. 470; Mathers v. Barrow, 202 Ala. 342, 80 So. 424. Where the bill of exceptions is not presented to the trial judge within 90 days from the date judgment was rendered, same will be stricken on motion of appellee. Code 1923, §§ 6433, 6434; McMillon v. Skelton, 208 Ala. 693, 95 So. 148; Sloss Co. v. Sampson, 204 Ala. 240, 85 So. 501; Birmingham Waterworks v. Justice, 204 Ala. 547, 86 So. 389.
The labor lien claimed was subordinate to plaintiff's title. Acts 1915, p. 374; 202 Ala. 342, 80 So. 424. Riddle Riddle, of Talladega, for appellees.
It is contended by appellee that the lien created by said article 5490 was not limited to property owned by appellant Sharp located in the residence and other buildings which passed under said lease contract to said Sharp, but extended to all property owned by appellant Sharp on the leased premises, whether located in said residence or other buildings, to secure the payment of the rents due and to become due under said contract of lease. In support of appellee's position the following Texas cases are cited: West Furniture Co. v. Cason (Tex.Civ.App.) 218 S.W. 774; York v. Carlisle, 19 Tex. Civ. App. 269, 46 S.W. 257; S. F. Bowser Co. v. Cain Auto Co. (Tex.Civ.App.) 210 S.W. 554 — and the following cases by the Supreme Court of Alabama: Mathers v. Barrow, 202 Ala. 342, 80 So. 424; Stephens v. Adams, 93 Ala. 117, 9 So. 529. The Alabama decisions are based upon a statute materially different from the Texas statute.