Opinion
6 Div. 737.
May 10, 1962.
Appeal from the Circuit Court, Tuscaloosa County, W. C. Warren, J.
Geo. S. Wright, Tuscaloosa, for appellant.
The statutory mechanic's and materialman's lien being in derogation of the common law, a bill seeking to enforce such lien must allege all such facts necessary for a strict construction of and compliance with the statute. Snellings Lumber Co. v. Porter, 225 Ala. 164, 142 So. 560; Richards v. William Beach Hardware Co., 242 Ala. 535, 7 So.2d 492; Emanuel v. Underwood Coal Supply Co., 244 Ala. 436, 14 So.2d 151; Lindsey v. Rogers, 260 Ala. 231, 69 So.2d 445.
A bill seeking to enforce a mechanic's or materialman's lien, must allege a valid contract between complainant and respondent. First Colored Cumberland Presbyterian Church v. W. D. Wood Lumber Co., 205 Ala. 442, 88 So. 433; Sturdevant v. First Ave. Coal Lumber Co., 219 Ala. 303, 122 So. 178; Lindsey v. Rogers, 260 Ala. 231, 69 So.2d 445.
Such a bill must clearly and concisely describe the land and or buildings which complainant is seeking a lien upon. Fowler v. Mackentepe, 233 Ala. 458, 172 So. 266; Morgan v. Stokes, 252 Ala. 335, 40 So.2d 425; Sanitary Plumbing Co. v. Simpson, 200 Ala. 590, 76 So. 948; Jefferson Mortg. Co. v. Estes Lumber Co., 222 Ala. 559, 133 So. 267.
Materialmen and contractors may not join together as parties complainant in bill to enforce mechanic's lien. Equity Rule 15, Code, Tit. 7, 1940 App.; Emanuel v. Underwood Coal Supply Co., supra; Le Grand v. Hubbard, 216 Ala. 164, 112 So. 826; Code 1940, Tit. 33, §§ 57, 58, 64, 65.
Turner Turner, Tuscaloosa, for appellees.
Substantial compliance with statute giving mechanic's and materialman's lien is sufficient to give rise to a materialman's lien which may be enforced by a bill in equity averring all facts necessary for its enforcement. Equity Rule 11, Code 1940, Tit. 7, App.; Code 1940, Tit. 33, § 37; Bice v. Bains Builders, Inc., 269 Ala. 662, 115 So.2d 468; Skelton v. Seale Lumber Co., 260 Ala. 179, 69 So.2d 288.
A materialman's lien and the enforcement thereof is a creature of statute and not of contract. Code 1940, Tit. 33, § 37; Skelton v. Seale Lumber Co., supra; Bice v. Bains Builders, Inc., supra; Lindsey v. Rogers, 260 Ala. 231, 69 So.2d 445.
A description is sufficient if it enables a person familiar with the locality to locate and identify the property from such description. Code, Tit. 33, § 41; Karter v. East, 220 Ala. 511, 125 So. 655; East et al. v. Karter, 215 Ala. 375, 110 So. 610.
Where two or more parties furnish building materials and labor under separate contracts with the owner or proprietor for the construction or alteration of improvements on one parcel or tract of land, they may join as parties complainant in a bill seeking to enforce their respective liens on the single parcel of land and the improvement. Code, Tit. 33, §§ 46, 50; Staley v. Woodruff, 257 Ala. 571, 60 So.2d 384; Creson v. Main, 260 Ala. 318, 70 So.2d 417.
This is an appeal from a decree overruling a demurrer to a bill of complaint brought by the three appellees to enforce separate mechanic's and materialman's liens. The appeal was taken prior to enactment of Act No. 72, Special Session of the Legislature, 1961, abolishing appeals from rulings on demurrers in equity.
Appellant argues several grounds of demurrer relating to the sufficiency of the allegations contained in the bill of complaint as to the validity of the contracts among the parties, the description of the suit property, appellant's interest in the property, and other statutory requirements for the declaration of liens.
From a reading of the bill we find it presents a sufficiently clear and orderly statement of the facts which is the basis of the suit complying substantially with the requirements of the statute. Title 33, §§ 37, 41, 48, 49, and 50, Code 1940. It is not necessary to aver in terms that material was furnished under a contract with the contractor. It is enough that the facts averred showed such contract, and that the materials were furnished for use in the building, Tisdale v. Alabama G. Lumber Co., 131 Ala. 456, 31 So. 729. A complaint on the common count for labor done and material furnished is sufficient. Whatley v. Reese, 128 Ala. 500, 29 So. 606. Here the bill alleges "That your Complainants, as the original contractors with the Respondent, Maurice Stoughton, furnished building materials and labor which were used in the building, improvements, repairing or altering the dwelling house situated * * *. That said building materials were sold and furnished by Cole Supply Co., a corporation under and by virtue of a contract with said Maurice Stoughton, entered into on or about the 1st day of May, 1960 * * *." We think this sufficient as against the asserted demurrer. Skelton v. Seale Lumber Co., Inc., 260 Ala. 179, 69 So.2d 288; Bice et al. v. R. L. Bains Builders, Inc., 269 Ala. 662, 115 So.2d 468.
Appellant next complains that the property upon which the liens are claimed is insufficiently described. The bill sets out the description as follows:
"Lot No. Three (3) Echo Hills Subdivision, in the City of Tuscaloosa, County of Tuscaloosa, State of Alabama."
We do not believe that this ground of demurrer is well taken. It is sufficient if the description points out the premises, so that, by applying it, the land can be identified. Morgan v. Stokes, 252 Ala. 335, 40 So.2d 425; Fowler v. Mackentepe, 233 Ala. 458, 172 So. 266. The description of the lot upon which the improvements are situated is a sufficient description. Vesuvius Lumber Co. v. Alabama Fidelity Mortgage Bond Co., 203 Ala. 93, 82 So. 107
The only remaining contention of appellant is that the appellees, one of whom is a materialman and the other two mechanics within the meaning of Title 33, § 37, Code, are improperly joined in presenting their separate claims. We do not agree. It is apparent from the averments of the bill that the claims all arise from the making of improvements to appellant's real estate lot within a matter of a few days. There is but one parcel of real estate involved. The statute (Title 33, § 50) specifically provides that "all persons interested in the * * * property charged with the lien, may be made parties". Where separate and distinct claims involve but one principle of law and grow out of the same subject matter, there is no multifariousness when joined in one action. Equity Rule 15, Code. The avoidance of a multiplicity of law suits is to be encouraged.
We find no error in the rulings below.
Affirmed.
GOODWYN, MERRILL and COLEMAN, JJ., concur.