The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1859-04-27
John X. Ottley ,. HayIIand. Clark { Go

Of Columbus, and the buildings erected thereon
It appears 10y the bill. that in the year 1916, one
Winston conveyed the lots to one Malone. who exc
cuted deed Of trust to Banks a. trustee 10 Sc.
cure the purchase money-that on the 1t June
ls47. Malone conveyed the lots one Hill who exc
cuied deed 81 trust - one Stewart trustee 60
cure hI- purchase money-thst in March. lS4s Hill
executed to one Lymun- a note for sum Of money
due for lumber and materials furnished hv contract
Of Lymon- % Hill for the erection Of building upon
the lots; and in September. ls4s that suit was
brought upon that for the purpose Of emf rciug
the statutory hen, and that Judgment rendered
thCreupou. ~ulleCtIu4 the lots the huu-t erect
thereon to the satisfaction ~ tho debt iIpder ,rb,b
Judgment the appellant purchased the premises at
execution sale IN February S4g-that on the I'd MAY.
lstS. Hill conveyed the premises stewart trustee
after the date Of the contract Of H and Lymous in
relation 10 the lumber and materials, Havand Clark
a Co. paid Malone the amount due him upon the
trust deed Of Hill and took an assignment Of that
dec-that before the sale IF the property under the
deeds of trust for the benefit Of Malone ana of Hav
land, Clark Co. ptteN rendered TO HJyiland Clark
a Co. the amount due the deed Of June 1t. ls47
and afterwards that the lDt- and buildings were sold
under both Of the deeds Of trust held by Haviland
Clark & Co. and were purchased for their benefit.
The bill tenders the amount paid by Hayllaud.
III" enforcement Of the compliments equitable title
against the entire property against such part Of
j. q lac may hc entitled 10, and that the defendants
title be Invested.
The appele-~ filed demurrer to this. which was
sustained, and the bill dism.s~ed-and hence this
appeal was taken.
The grounds Of demurrer taken in the court be-
low. and the errors insisted upon here present two
questions for consideration:
J. Whether the appellant acquired equitable
title both 90 the lots and the buildings under his pur-
chase at sheriff sale and ia which be l. entitled to
protection upon prying the amount of the prjor lien
arising from the deed e trust 10 Malone.
? Whether he did not acquire by his purchase a
title 70 the buildings ereg@el upon the lots.
J. Il appears that al the time If the appellants pur-
chase the deed Of trust Of 1t June ls47, full
force and un-atI~icd Il was tca upon the lots pri-
that under which the appellant purchased: and
the money due upon d being unpaid the property
subject to not liable sale under the cxcclj-
uon o. enforce the mechanics lien The rule Is well
settled IN tins court. that under such cIrcum-
no ute either legal equitable passed the pur-
cha~erIn virtue Of the execution sale. tBnarman
C8tlett. Is a NJ. l4g:. Wolfe ys. lowell ID los:
Baldwin ct al. jenkins ct al. b 2j61 Hence the
appellant acquired no interest IN the lots which he
could recover by tins bill aud % that part Of the
property IA controversy, the bill was properly dis
missed.
,. Ddhe acquire any right to the buildings erected
upon the lots?
The hill shows that although the deed Of trust for
the hentt Of Malone outstanding and Un-ati- ed
IN March 1875 wneu the len for lumber and materials
na- created Yet TINT HUI by it, terms entitled To
the possession until the premises should be sold uu.
de- IT, and that the sale did not take place until long
afterwards. Whilst in possession the lien was Great
ed by contract with Hll-and thequestibn L. whether
he.had the right 10y that contract create lien upon
The blifqgs which could take precedence Of The len
Of the deed of trust then subSstlng-aud this de
ponds upon the provisions Of the act Of $50 Hutch
Code, go by which the rights Of the partie, under
| the proceedings aye governed.
BY the act of lSiS Hutch. Code 627 lien for work
and labor. or for materials furnished iu the building
| OF any house, was authorized favor Of the work
| man dong the work. or the person furnishing the
materials m the construction Of the house. to be en-
| forced against the building IN preference to any
other hoi originating subsequently, Il the commencement
u Iid bslityig. date Of the contract therefor"
held by this that under this statute bull
ding could not he subjected 70 this hat against a prio
hen hy mort gage. which bound the land uron Whici
the building erected; because the binding wa
| annexed 10 the freehold and could not be severed
from t-that the statute did not extend the Hc eithe
| = the land to the building English ". Foote,
/ . n
conferred by tins statute ltpro'ides that for ,uci
| labor or materials furnished upon any building. tn,
| party doing the work OF furnishing the materials
-hail have Zen 10 secure the payment of the same
Upon the buildings and materials 7fyrssdi and sal,
buildings and materials ba not b. subject 10 diy Othe
Lsl whatsoever until the aforesaid lien shall have beeI
| cancelled
Taking this in connection with the provision Of th
previous statutes j.; appears TO he manifest that a
he buildings erected by the labor or materials Of tn
party furnishing tlleu Il Was intended TO authorize
hea Superior To any hen suhsIstIng upon the land to
| the language = broad and pointcd-"S1d building
1at materials shol not b subject 70 any ot ian ,cLat
II there could be any doubt that it was intended t.
give such ic7s precedence over all other hsns upol
the land would be removed by the part Of the stat
utr immediately following this provision. that tn
event ui there beng no other lien m existence "a
su't ~ or parcel u ground r., then and in that ease
| ". SUD lot OF parcel 81 ground. &r- {" he equal
subject 70 the payment Of said contract IN
| the house, building, &c. erected, or CONSTRUCTED
| thereon"
| It's therefore manifest, that the Legislature ha
II the contract u relation % the buliing-that
RE IlfIiiag il was int,.uIeito render me sg mar
mount 70 all prior liens upon the land and 70 extern
the lien 10 tie and where there was no sah-i~ting pr
| ~ lien uponit.
It j. insisted in behalf Of the appeIlecs thai, tn
case Of Hoover ". Wheeler, p Miss 81, settles Tn
| question that the building not liable the H.
| question does uo' appear 10 have been dl~,lnctl
presented OF considered IN that case The nature d
the mechanics lien does not distinctly appear. yhol
er founded upon claim for labor or materials fuI
| nl-ueu M tfgfff4Ta building. or m
rsGi eecrtot-and the distinction between the liel
| upon the builiiuE and that upon the land, with ref
| .rencq 10 the Drior mortgage i not con.dared TIN
therefore be considered decisive Of tn
| question here presented.
| The culy remaining point to b. considered j. =
| whether the hen upon the buildings was created b.
party competent % create it, in order TO give it va
| hdiy under the statute.
! II was made by Hill the mortgagor in possession
who was entitled 10 hold possession until Invested O
| my sale. II does not appear whether the CONDITION
was broke or not: hut ms possession vas IN virtue
| the deed. and hc IN law the proprietor, hayu
the right 70 discharge the mortgage and retain tn
| property. lie was. therefore. such proprietor a
| Is contemplated by the statute.
| Il follows from the foregoing views. that upon tn
facts stated la the bin the buildings and material
| were subject to the hen under which the appcllan
purchased. and that he acquired right 10 them in VII
tur. Of his puraL4se blr that he acquired No inreres
| to the ground on which they were erected. The bl
was therefore maintrinahle upon the facts stated a
| 20 the buildings and metcrials; and the demurre
| being to the whole bill was improperly sustained
A. 10 the Froprlety of coming into equity to asScr
| the appellants right 20 the buildIng- and materials
II appears from tiit ttlllh nature OF the TIA
other court is competent TO give adequate relic
without injustice to the respective rights Of the PAL
| ties. The appellant being entitled to the building
| and materials with the right to remove them iron
the ground, and the aVpelleeS being entitled To- ia
ground il is proper tlata Court Of Equity should q
/ rect how the appellant right % remove the build
iugS and materials shall he exercised a. 10 do n
| prejudice to the rights Of the aPpelleeS owners
The ground-and this could not he done ~ a court \
law. IL appears, therefore, TO be proper case IL
| the iuterpo-t0n Of a'CpuGt Of Equity.
| The deere l. reversed and the demurrer override,
far the relief sought by the hjll extends 10 ia
| buildings and materials on the lots IN the pleading
| mentioned; and in that repect the cause J. rernar
ded and the appellees required TO answer the hi
| within sixty days. HANDY.
The following interesting decision ha
been made by the Supreme Court of Ala
bama:
BANK OF MOBILE v. MEAGHER 4 co.