the land superior to the liens of mort- chanics' lien, the jury found for plaintiff, gages thereof executed after commence- and assessed his damages, but made no ment of the work for which the mechan- finding as to the lien, it was error for the ics' liens are filed. Held that, on suit to court, without taking proof of facts nechave a mortgage lien declared superior to essary to constitute a lien, to enter judg mechanics' liens, the burden of proving ment that a lien attached to the land, the the commencement of the work prior to existence of a lien being in issue. Florthe execution of the mortgage is on a de- ence Bldg. & Inv. Ass'n v. Schall, 107 Ala. fendant lienor; and evidence by him that 531, 18 So. 108. work was commenced before, and by the owner that it was not commenced till after, the date of the mortgage, justifies a finding that the mortgage lien is a superior lien. Leftwich Lumber Co. v. Florence Mut. Bldg. Loan & Savings Ass'n, 104 Ala. 584, 18 So. 48. § 95. Trial or Hearing. § 96.

Instructions.

In an action to foreclose a contractor's lien, a request to charge that it was immaterial whether there was

a contract

§ 97 (2) Form, Requisites, and Sufficiency in General.

In an action to enforce a mechanics' lien, where the complaint contains the common counts and a special count, describing the structure and improvements sought to be charged with sufficient certainty, and issue is joined on the pleas of payment and set-off and the general issue, a verdict finding "the issues in favor of plaintiff, $100," though informal, is sufficient to support a judgment establishing a lien for that sum on the structure and improvements. Bedsole v. Pet

between the parties, if plaintiff did the work and furnished material to defendant on the property described in the com-ers, 79 Ala. 133. plaint, and defendant accepted the same and it was beneficial to him, and the lien, a finding of facts wherein it does

work and material was worth the amount paid and any other sum above the amount paid, to wit, $1,687.30, the jury should find for plaintiff the amount above said so paid, and find a lien on the property described in the complaint in favor of plaintiff, was properly refused as misleading. Gates v. O'Gara, 39 So. 729, 145 Ala. 665.

sums

Where, in an action to recover for labor done and material furnished in the construction of a house, the plaintiff filed a complaint in four counts, the first three of which were the common counts, and the fourth declaring on contract, wherein he sought also to establish a lien for the amount due, it was not error to refuse defendant's request to charge that on certain hypotheses the jury should find for defendant on the fourth count; the correct form of the charge being that they should not find for the plaintiff, or should not find against the defendant, on the count. Goldstein v. Leake, 36 So. 458, 138 Ala. 573.

In an action to enforce a material man's

not appear that plaintiff supplied the materials for use in a certain house does not support a judgment against the owner of the house for the value of the material, and a condemnation of the house to its satisfaction. Johnson v. Simmons, 26 So.

650, 123 Ala. 564.

§ 97 (3) Indefiniteness.

In an action by a material man against a contractor and owner, a verdict reciting: "We, the jury, find for the plaintiffs, and assess the damages at $395.58. We further find that the plaintiffs have a lien on the property described in the complaint, and that T. [the owner] was due the contractor, M., $, and do hereby condemn the said property for the payment thereof"-is not sufficiently definite as to the amount due the contractor from the owner, and for which the latter is liable to plaintiffs, and can not sustain a judgment against such owner. Tisdale v. Alabama & G. Lumber Co., 31 So. 729, 131 Ala. 456.

§ 98. Judgment or Decree.

§ 98 (1) Rendition, Form and Requisites in General.

In an action brought to enforce a ma

10 Ala Dig-3

ment in General.

terial man's lien the judgment though § 99. Execution and Enforcement of Judgfounded on a complaint containing all the necessary statutory averments, is insufficient to perfect the lien, if it be only a judgment in the ordinary form in a personal claim. Porter & Co. v. Miles, 67

§ 98 (2) Description and Extent of Land. The description of a piece of land, in a judgment for a mechanics' lien on a house located thereon, which commences, "Beginning at the S. E. 4," without indicating at which part of the S. E. 4 to begin, is uncertain and insufficient, even though it says "the house described in complaint," which correctly describes the land, as the judgment must be complete in itself, and not dependent on other record recitals. Salter v. Goldberg, 43 So.

571, 150 Ala. 511.

§ 98 (3) Conformity to Process, Pleadings,
Proofs, and Verdict or Findings.
The judgment must correspond with
the complaint. Porter v. Miles, 67 Ala.

130.

§ 98 (4) Directions as to Sale or Lease, and Priorities and Distribution of Proceeds.

In an action to enforce a lien for materials furnished for the erection of a hotel, the judgment declared a lien on the building and the material therein and thereabout, and on the lot. A petition for an order commanding the issue of a second writ for the sale of the material alleged that the building and lot had been sold, but that a balance remained unpaid on the judgment. Held, that the order was properly refused where it was not shown in the petition or in the judgment that the material had with the erection of the building, or was any connection intended to be used therein. Lee v. King, 99 Ala. 246, 13 So. 506.

It was also properly disallowed where it was not shown that in filing the claim for a lien, or in the suit or complaint in which judgment for the lien was rendered, there was any mention of or claim on the material, but, on the other hand, the ver

dict shows either that there was no such
Lee v.
claim or that it was disallowed.
King, 99 Ala. 246, 13 So. 506.

It was also properly denied where it was not averred of what the materials consisted, and no description was given whereby the sheriff would be informed of what he was commanded to seize. Lee . King, 99 Ala. 246, 13 So. 506.

It was also properly denied where it was not averred who was the owner of the material. Lee v. King, 99 Ala. 246, 13

§ 100. Sale.

Under Code 1886, § 3262, authorizing the chancery court to partition or sell for partition lands held in common, such So. 506. court has power to sell such lands on a bill for the foreclosure of mechanics' liens against the interest of certain co-tenants, where the land is of such nature that it can not be equitably partitioned. Hines v. Chicago Bldg. & Manuf'g Co., 22 So. 160, 115 Ala. 637.

§ 98 (5) Operation and Effect.

A decree for the sale of a building erected on leased premises under a builder's lien does not, without sale, vest in the plaintiff either title to the leasehold or right of possession; and, if he takes possession thereunder by permission of the lessee, such fact does not make him privy to the lease, nor liable to the lessor on its covenants. Merchants' Ins. Co. V. Mazange, 22 Ala. 168.

§ 101.

Title and Rights of Purchaser. Under Code 1907, § 4756, which provides that a lienholder on a building erected by a lessee may within 60 days after a sale under the lien enter and remove the building, no exception is made where the entry and removal were after the lease had expired and the premises passed into possession of the owner or another lessee, and such a condition would not render the purchaser a trespasser. Wildman v. Evans Bros. Const. Co., 175 Ala. 333, 57 So. 831.

§ 102.

Redemption.

Code 1907, § 4757, which provides that. when a lien attaches to buildings or im

In an action to enforce a mechanics' lien for materials furnished a contractor, and used by him in the erection of a house, no personal judgment can properly be rendered against the owner, if he has not contracted with the material man to pay for the materials. Copeland v. Dixie Lumber Co., 4 Ala. App. 230, 57 So. 124.

provements on leasehold property, under S. H. Harris & Sons, 41 So. 930, 148 Ala. § 4756, the lessor may retain the build- 503. ing before sale to enforce the lien by payment of the amount secured, or after sale by paying the value of the building, gives the right only to the lessor, so that he may preserve his premises in their improved condition, and a lessee with no showing of special authority has no right to redeem. Wildman V. Evans Bros. Const. Co., 175 Ala. 333, 57 So. 831. § 103. Deficiency and Personal Liability. § § 104. Personal Liability on Failure

to Establish Lien.

In General. The common counts may be united with a special count seeking to enforce a mechanics' lien, and the plaintiff may have a personal judgment though he fails to establish the lien. Bedsole v. Peters, 79 Ala. 133.

In a suit on an account, wherein it is sought to enforce a material man's lien, plaintiff may have a personal judgment, though he fails to establish his lien. Sullivan Timber Co. v. Brushagel, 111 Ala.

114, 20 So. 498.

§ 105.

Owner.

Personal Judgment against

§ 105 (1) In General.

105 (2) Privity of Contract between Owner and Claimant.

A personal judgment can not be obtained against the owner of a building for material furnished the contractor on his own account, if the owner had no knowledge of the purchase of the material by the contractor. May & Thomas Hardware Co. v. McConnell, 102 Ala. 577, 14 So. 768.

Under Code 1907, § 4770, providing that in an action to enforce a mechanics' lien, if it be held that plaintiff has a lien, judgment shall be rendered for the amount secured thereby against the party liable for the same, and establishing a lien and condemning the property to sale for its A mechanic or material man who fur- satisfaction, but, if the verdict is for nishes labor and material may obtain in plaintiff only on the issue of indebtedone action his lien and a general judg-ness, a judgment shall be rendered in his ment against the contracting owner or his favor as in other cases, where plaintiff conpersonal representative, though he may proves an indebtedness against a tractor for materials furnished to him and have only one satisfaction; and on a complaint in an action against an adminis- used in the building, he is entitled to a trator on a special contract for the agreed personal judgment against the contractor, price of materials furnished and work and a lien upon the property described in done under a contract with decedent, and the complaint for any unpaid balance due for enforcement of a mechanics' lien, by the owner to the contractor. plaintiff may have a judgment of both land v. Dixie Lumber Co., 4 Ala. App. characters, or failing to establish his lien, 230, 57 So. 124. may have a personal judgment only. La- § 107. Review. vergne v. Evans Bros. Const. Co., 52 So. 318, 166 Ala. 289.

Cope

In an action to enforce a mechanics' lien, the overruling of the owner's deUnder the express provisions of Code murrer to the complaint, which sought a 1896, § 2739, where, in an action to es- money judgment against him, was harmtablish a mechanics' lien, the evidence less error, where the judgment merely deshows a personal liability on the part of clared a lien on the owner's premises for defendant and that plaintiff is entitled to the amount of the money judgment rena lien, a judgment both in personam and dered against the contractor. McConnell in rem is to be rendered. McGeever V. v. Worns, 102 Ala. 587, 14 So. 849.

See the title CRIMINAL LAW; EVIDENCE; WITNESSES.

Medical Jurisprudence.

INSANE PER

See the titles ABORTION; CORONERS; DRUNKARDS; SONS; PHYSICIANS AND, SURGEONS; POISONS; RAPE. As to evidence of paternity, see the title BASTARDS. As to medical evidence, see the titles CRIMINAL LAW; EVIDENCE; WITNESSES.

Medicines.

See the titles INTOXICATING LIQUORS; PHYSICIANS AND SURGEONS; POISONS.

Medium of Payment.

See the titles ACCORD AND SATISFACTION; ASSIGNMENTS; BANKS AND BANKING; BILLS AND NOTES; CONTRACTS; JUDGMENT; PAYMENT.

Meeting Houses.

See the titles DISTURBANCE OF PUBLIC ASSEMBLAGE; RELIGIOUS SOCIETIES.

Meetings.

See the titles DISTURBANCE OF PUBLIC ASSEMBLAGE. As to meeting of corporate directors, see the titles BANKS AND BANKING; CORPORATIONS. As to unlawful meeting, see the title UNLAWFUL ASSEMBLY.

Members.

As to members of juries, corporations, clubs, insurance companies, etc., see the appropriate specific titles throughout this work.

Memorandum.

See the titles ALTERATION OF INSTRUMENTS; APPEAL AND ERROR; BILLS AND NOTES; BONDS; COSTS; CRIMINAL LAW; EVIDENCE; FRAUDS, STATUTE OF; SALES. As to use of memorandum by witnesses, see the title WITNESSES.

See the titles WILLS; WITNESSES.

Menace.

See the title THREATS.

Mental Capacity.

See the titles BILLS AND NOTES; CRIMINAL LAW; DRUNKARDS; EVIDENCE; HOMICIDE; INSANE PERSONS; MARRIAGE; WILLS.

Mental Suffering.

And

As to mental suffering as an element of damages, see the title DAMAGES. see the appropriate specific titles, such as ASSAULT AND BATTERY; BREACH OF MARRIAGE PROMISE; CARRIERS; DEATH; HUSBAND AND WIFE; LIBEL AND SLANDER; etc.

Mercantile Agents.

See the titles FACTORS; PRINCIPAL AND AGENT.

Mercantile Business.

See the titles BANKRUPTCY; LICENSES.

Mercantile Law.

See the titles BILLS AND NOTES; COMMON LAW; COURTS.

Mercantile Partnership.

See the title PARTNERSHIP.

Merchandise.

See the titles BAILMENT; BILLS AND NOTES; EXEMPTIONS; CHATTEL MORTGAGES; FRAUDULENT CONVEYANCES; INSURANCE. As to merchandise as baggage, see the title CARRIERS.

Merger.

As to merger of corporations, banks, claims, rights, titles, estates, contracts, easements, torts, etc., see the appropriate titles throughout this work; as, for instance, as to merger of banks, see the title BANKS AND BANKING. As to merger of estates in general, see the title ESTATES. As to merger of judgments, see the title JUDGMENT. As to merger of torts in crime, see the title ACTION; etc.