under a contract, not with the owner or proprietor, but with the contractor who, under his contract, was to supply the proper materials, exists only when there is a balance due from the owner or proprietor to the contractor, and extends only to such balance. Childers v. Greenville, 69 Ala. 103. 3440-44), attaches from the commencement of the building, but is inchoate until the claim is filed in the office of the judge of probate; and if the claim is not so filed within the time prescribed by the statute, the lien is lost. Welch v. Porter & Co., 63 Ala. 225. S. agreed to build a house for B., who The mechanics' lien act of 1890-91, p. was to furnish the materials. While the 578, having been declared unconstitu- house was in process of construction, B. tional, such liens must be established un-mortgaged the premises to W., and subder the Code; and by § 3026 thereof a sequently purchased building materials subcontractor can only claim a lien to the from P. Held, that P.'s lien was subject extent of the amount remaining due to to W.'s mortgage, according to the conthe principal contractor when notice of struction of Code 1876, §§ 3442, 3444. the claim is served on the owner. Welch v. Porter, 63 Ala. 225, cited in Greene v. Robinson, 110 Ala. 503, 20 note in 14 L. R. A. 307. So. 65. § 60. Time of Accrual or Commencement. § 61. Beginning of Work. When a contractor undertakes to do the work on a building, or to furnish the materials and do the work, he acquires a lien under the statute, to the extent of his contract, from the commencement of the work; and when one person contracts to do the work, and another contracts to furnish the materials, the bien of each attaches when he begins the performance of his contract. But, when a contractor undertakes only to do the work, and the materials are to be furnished by the of the property, and after the commencement of the work materials are furnished by a third person, under a separate and independent contract with the owner, the lien of the material man does not relate back to the commencement of the building, so as to override the lien of a mortgage or other intervening incumbrance. Welch v. Porter & Co., 63 Ala. 225. owner (B) PROPERTY, ESTATES, AND RIGHTS AFFECTED. As to description in judgment, see post, "Description and Extent of Land," § 98 (2). As to description of property in lien claim or statement, see ante, "Description of Property," § 48. As to estates or interests which may be subject to lien, see ante, "Estates or Interest Which May Be Subject to Lien," § 8. As to priorities between liens and conveyances, see post, "Conveyances in General," § 69. As to property which may be subject to lien, see ante, "Property Which May Be Subject to Lien," § 5. As to directions in judgment or decree, see post, "Directions as to Sale or Lease, and Priorities and Distribution of Proceeds," § 98 (4). As to time of accrual of lien in general, see ante, "Time of Accrual or Commencement," § 60. § 63. Extent of Land Affected. § 64. In General. Where it appeared that the lot of land Under Code 1907, §§ 4754-4784, relat- upon which the lien was claimed was ing to mechanics' liens, a lien attaches within a town, it was immaterial that the from commencement of the building or lot contained more than one acre. Chrisimprovements, subject to be defeated if ian-Craft Grocery Co. v. Kling, 121 Ala. the claim be not verified and filed with 292, 25 So. 629, cited on this point in 26 the judge of probate within the pre- L. R. A., N. S., 833. scribed time. Lavergne v. Evans Bros. Const. Co., 52 So. 318, 166 Ala. 289. A claim for material furnished in buildFiling of Claim or Statement. ing two houses under separate contracts, The lien given by statute to contract- filed as a lien against one of the buildors, mechanics, and material men, for la-ings, is invalid as against a mortgagee of bor done and materials furnished in the the building, though the owner has conconstruction of buildings, etc. (Code, §§ sented to a decree establishing the lien § 62. § 65. Separate Lots or Buildings. in a suit by the claimant against him. erally owing by him; Code 1886, § 3018, Leftwich Lumber Co. v. Florence Mut. providing for a lien for work done by Bldg. Loan & Savings Ass'n, 104 Ala. virtue of a contract with the owner to 584, 18 So. 48. the extent of the interest owned by him. Hines v. Chicago Bldg. & Manuf'g Co., 22 So. 160, 115 Ala. 637. (C) PRIORITY. § 66. Buildings. Under Acts 1900-01, p. 2115, providing that a contractor or laborer who shall repair or beautify any building shall have § 69. Conveyances in General. a lien on such building and upon the land The mechanics' lien act of 1834 (Dig. upon which it is situated to a certain ex- p. 375) gives master builders and metent, a lien may be established against chanics contracting in writing to erect the house alone, without the land. Sal- buildings, etc., a lien in the nature of a ter v. Goldberg, 43 So. 571, 150 Ala. 511. mortgage on the land on which such Under Code 1907, § 4754, giving a me- building, etc., shall be put up, as well chanics' lien for materials on a building as on the building, for services and maor improvement and the land on which terials, unless there is a stipulation to the it is situated to the extent of the own- contrary; and provides that such lien er's interest therein, the lien is enforce- shall not have priority over bona fide inable against the improvement or build- cumbrances existing anterior to the coning, though lost as to the land, where a tract, if duly recorded; and that the concontractual obligation existed between tract shall be recorded in the county the lienor and the owner of the building clerk's office within 30 days after the or improvement. First Ave. Coal, etc., Co. v. McWilson, 182 Ala. 276, 62 So. 531. Under Code 1907, § 4754, giving a mechanics' or materialman's lien for labor performed or materials furnished for any building or improvement on land upon such building or improvement and the land on which it is situated to the extent of the owner's interest, section 4755, giving the lien priority over existing liens or mortgages on the land, and sections 4756 and 4757 protecting material men when the building is erected upon leased land, a party furnishing material for a building erected on the land of one not a party to the contract and who did not consent or acquiesce in such construction had no lien on the building or right to remove it. First Ave. Coal, etc., Co. v. McWilson, 182 Ala. 276, 62 So. building is erected, or the lien will be inoperative. Held that, where the person for whom the building is erected has only a leasehold interest, the lien of the builder is paramount to the right of one who takes an assignment of the lease after the completion of the building and recording of the contract. Montandon v. Deas, 14 Ala. 33. A purchaser of real estate, taking as absolute owner of the fee, without notice, actual or constructive, of an unfiled mechanics' lien, takes free thereof; he not being within either class over whom a mechanics' lien is given priority by Code 1896, § 2724, declaring such lien as to the land to have priority over all liens, mortgages, or incumbrances created subsequent to commencement of the work, and as to the building to have priority over all other liens, mortgages, or incumbrances, whether existing at comCre-mencement of the work or subsequently created. Martin v. Clark, 46 So. 232, 154 Ala. 425. Where a subscription contract for the construction of a building binds the subscribers to pay only the respective amounts subscribed by them, the interest of each being proportionate to his subscription, mechanics' liens for such construction accrue only against the undivided interest of each for the amount sev $ 70. Liens and Incumbrances in General. The words "Building" and "Improvement," are not synonymous in Code, § 3019, declaring that mechanics' liens as to the land shall have priority over all other liens, mortgages, or incumbrances created subsequently to the commencement of the work on the building or im provement, or repairs thereto; and, as terment of a building or improvement, or to the building or improvement, it shall when there is a lien for 'repairs thereto, have priority over all other liens, mort- upon which there is an existing mortgages, or incumbrances, whether existing gage or lien, before or at the time the at the time of the commencement of such improvements or repairs are commenced. work or subsequently created. The term The statute as clearly declares the lien "building" refers to an independent erec- for an improvement which is a mere ad tion upon the land. An improvement dition or betterment of a building or immay be an independent structure or ad-provement, or for repairs thereto, as it dition, and it may be an addition to or does upon a building or improvement mere betterment of a building or im- wholly erected; and it is the duty of the provement already made, and not in- courts to protect and enforce the lien as cluded in "repairs thereto." Wimberly v. far as it can be done legally, and without Mayberry, 94 Ala. 240, 10 So. 157. interfering with vested interests or impairing the obligation of contracts." Wimberly v. Mayberry, 94 Ala. 240, 10 So. 157, 158. § 71. Attachments and Executions. "The statute contemplates different conditions of the realty at the time of the commencement of work by the mechanic, or when the materials are furnished, or repairs thereto are made; First, when there is no lien or incum- The subcontractor's lien given by Act brance upon the land at the time the Dec. 9, 1841 (Sess. Acts 1841-42, p. 3), building or improvement or repairs are "for the better securing mechanics in the commenced; second, when there is a lien city and county of Mobile," attaches on upon the land, and other and independent the delivery of an attested account, and buildings or improvements are subse- intercepts money then due to the original quently commenced; third, when there is contractor or afterwards accruing under a lien upon the land, and building or the contract; but the lien of a garnishimprovements thereon, and further im- ment served on the debtor before the provements or repairs are subsequently delivery of such attested account is sucommenced. The word 'land,' as used in perior to the subcontractor's lien as to §§ 3018, and 3019, has its common-law the money due at the time of its servmeaning, and includes all buildings or ice. Conboy v. Fricke, 50 Ala. 414. improvements on the land at the time of An attachment having been levied on the commencement of the work, or when the property after the accrual of the mematerials are furnished. Under the first chanics' lien, the attaching creditor may condition, by virtue of § 3018 of the be made a party to the statutory action Code, a lien is given upon the building for the enforcement of the lien, and he or improvement and land, not only for will then be bound by the judgment renthe work done and materials furnished, dered in that action; but, if he is not but for repairs made; and, by § 3019 of made a party, he is not bound by its the Code, this lien has preference over recitals as to the time when the lien acall subsequent liens or mortgages. The crued; and the property being sold unlien may be enforced, if necessary, by a der executions on the judgments rensale of the entire property. Under the dered in both cases, and the money second condition, for the erection of an brought into court by the sheriff, the independent building or improvement, a records of the two cases being the only mechanics' or materialman's lien is given evidence before the court, the money is upon the building or improvement, which properly awarded to the plaintiff in the is declared to be superior to any exist-attachment case, whose attachment was ing lien upon the land. The statute pro- levied before the mechanics' claim was vides that this lien may be enforced by filed for record. Young & Co. v. Stoutz a sale of the building or improvement, & Co., 74 Ala. 574. and, if necessary, the purchaser has authority to remove it from the land. The other conditions is when there is a lien for an improvement, which is a mere bet A mechanics' statutory lien for labor performed, or materials furnished, accrues from the time at which the labor is done or commenced, or the materials are furnished (Code, §§ 3440-47); and if maintain an action to enforce his statuthe claim is properly filed for record tory lien, without producing and surrenwithin the time prescribed, followed up dering the note, or satisfactorily accountby suit within ninety days (§ 3454), and ing for its absence. Lane, etc., Co. v. prosecuted to judgment without unnec-Jones, 79 Ala. 156. essary delay, the lien is superior to that of an attachment levied on the property subsequent to its accrual, though before the commencement of the suit to enforce it. Young & Co. v. Stoutz & Co., 74 Ala. 574. § 73 (3) Time of Maturity of Note. Acceptance of a debtor's note does not waive a mechanics' lien, unless the right of action is thereby postponed beyond the time prescribed for enforcement of the law. Lane & Bodley Co. v. Jones, OR 79 Ala. 156. to As As to assignment affecting parties lien suit, see post, "Plaintiffs," § 84. to form of claim or lien, see ante, "Filing One or More Claims against Different Buildings," § 44. § 72. Effect of Assignment of Debt or Claim. Under Code, § 3047, providing that any claim for which a lien is provided may be assigned, and investing the assignee with all the rights and remedies of the original holder of the lien, an assignment of a claim carries with it the lien for its enforcement. Leftwich Lumber Co. v. The giving of notes for a claim on which the creditor is entitled to a mechanic's lien does not operate as payment, nor does the acceptance thereof waive the lien, where the notes mature before the expiration of the time for suing to enforce such lien. Hines . Chicago Bldg. & Manuf'g Co., 22 So. 160, 115 Ala. 637. The acceptance by a material man of notes of the owner of a building for material furnished, payable within the time allowed for filing lien, is not a waiver of the right to file liens or to enforce liens already filed. Leftwich Lumber Co. v. Florence Mut. Building Loan & Savings Ass'n, 104 Ala. 584, 18 So. 48. § 74. Persons Entitled to Assert Waiver. A mortgagee seeking to have his mortgage lien declared superior to mechanics' liens can not urge that notes given by the owner for the material furnished were held by the mechanic lienors when the action to foreclose their lien was brought. Leftwich Lumber Co. v. Florence Mut. Building, Loan & Savings Ass'n, 104 Ala. 584, 18 So. 48. (C) EXTINGUISHMENT, RELEASE, OR PAYMENT. Under the mechanic's lien act of 1834 (Dig. p. 375), giving a lien to master builders on the land on which a building is to be erected, etc., the execution of notes for the payment of the work, on a settlement of the account, and an extension of the time of payment, does not have the effect to avoid the lien unless § 75. Extinguishment or Loss in General. such is the intent of the parties. MonAn order granting a stay of execution tandon v. Deas, 14 Ala. 33. on a judgment foreclosing a mechanics' lien does not destroy the lien. Leftwich Lumber Co. v. Florence Mut. Building, Loan & Savings Ass'n, 104 Ala. 584, 18 So. 48. § 73 (2) Intention of Parties as to Note Being Absolute Payment. The acceptance of the debtor's note is not a waiver of the contractor's statutory lien, unless it is received in payment of the debt, or unless the right of action is § thereby postponed beyond the time prescribed by the statute for the enforce VII. ENFORCEMENT. 76. Nature and Form of Remedy in General. Legal or Equitable. The lien given to ment of the lien; but the plaintiff can not | master builders and mechanics by the act of 1834 may be enforced in equity. Mon- tural Ass'n v. Alabama Gas Fixture & tandon v. Deas, 14 Ala. 33. Though Code, § 3018, provides that employees and material men of contractors and subcontractors shall have a lien on any unpaid balance due the original contractor by the owner, there being no provision for the enforcement of a lien by employees or material men of subcontractors, such lien can not be enforced in an action at law. Nunnally v. Dorand, 110 Ala. 539, 18 So. 5. Plumbing Co., 31 So. 26, 131 Ala. 256. Where a contractor constructs two buildings on separate lots for the same owner under a single contract, a material man who has furnished material for both buildings may join the two liens, sepa. rately filed, in one bill, for enforcement out of unpaid balance due to the contractor from the owner. Wade v. Wyker, 171 Ala. 466, 55 So. 141. § 79. Defenses in General. Code 1886, § 3048, providing that a mechanics' lien may be enforced by bill in Where defendant failed to comply with equity if the amount involved exceeds the mechanics' lien law to protect his $100, is not in conflict with acts Feb. 12, property from the enforcement of a sub1891, § 8, giving the circuit court juris- contractor's lien, and told the subcondiction of actions to enforce liens of such tractor that he had enough to pay him amount, as there is no inconsistency in from the money going to the principal giving a remedy in law and one in eq- contractor, and allowed the subcontractor uity; consequently the former section is to complete the contract, he was estopped not affected by § 9 of the latter act, pro- to deny that he had money of the princividing for the repeal of all laws in con- pal contractor's sufficient to pay the subMcConnell flict with its provisions. contractor. Colby v. St. v. Worns, 102 James Colored M. E. Church, 99 Ala. 259, 13 So. 515. § 77. Conditions Precedent. Where a mechanics' lien attaches to a leasehold, the lease to which has been forfeited, the lien holder must, under Code, § 3443, pay to the lessor "all arrears of rent, or other money, interest, and costs due under the lease," before he can acquire the lessee's rights. Rothe v. Bellingrath, 71 Ala. 55. Ala. 587, 14 So. 849. § 80. Set-Off and Counterclaim. Damages for Default in Performance of Contract. Where a builder pays the contractors in full, except an amount equal material man, and to the claim of a agrees to pay such amount to the latter, without making any claim for damages for delay in completing the building, he is estopped, in an action to enforce a lien for the materials, to insist upon recouping for such delay. Cook v. Rome Brick Co., 98 Ala. 409, 12 So. 918. § 81. Jurisdiction. One who has furnished the contractor with material for the construction of a building is not entitled to a judgment condemning the building, to the satisfac- Equity Jurisdiction.-A mechanics' lien tion of his lien thereon for such material, until he has obtained a judgment against the contractor. May & Thomas Hardware Co. v. McConnell, 102 Ala. 577, 14 So. 768, cited in note in 14 L. R. A., N. S., 1036. is created by statute, which also prescribes the remedy for its enforcement, in many respects analogous to a bill in chancery, or a proceeding in rem (Code, §§ 3440-49); and a court of equity can not take jurisdiction to enforce this lien, § 78. Joinder of Liens in Same Proceed- "in the absence of some special ground ing. of equitable interposition, such as would render inadequate the remedy at law." Walker v. Daimwood, 80 Ala. 245. Where work is performed and material furnished in the erection of certain buildings under two separate contracts, "The statute prescribes, for the enand the rights growing out of said con- forcement of mechanics' liens, a civil actracts are identical in character and as to tion in a court of law, which in many reparties, a lien for the amount due under spects is analogous to a bill in chancery, said contracts may be enforced in one or an ordinary proceeding in rem. The action. Alabama State Fair & Agricul- complaint is required to allege the facts |