
    Henry L. Flake v. Central Hardware Company.
    [51 South. 461.]
    Mechanics’ and Materiaumen’s Lien. Code 1906, § 3063. Suits to enforce. Parties.
    
    Where a carpenter, under contract with a husband to erect a house on his wife’s land, purchased materials upon credit and used them in the building, the owner of the land, the wife, and the carpenter are necessary defendants to a suit by the party who sold the material to enforce a lien on the house, although there be no effort to subject the land to the debt, since Code 1906, § 3063, provides that all persons having an interest in the controversy or claiming liens on the property shall be made parties to the suit.
    Fbom tbe circuit court of Forrest county.
    HoN. WilliaM H. Cooe, Judge.,
    Tbe Hardware Company, appellee, was plaintiff in tbe court below; Flake, appellant, was defendant there. From a judgment in plaintiff’s favor defendant appealed to tbe supr¿me court. Tbe facts are stated in tbe opinion of tbe court.
    
      H. S. Mall, Luther James and J. B. Harris, for appellant.
    Tbe proceeding was purely a statutory one, and of course tbe direction of tbe statute must be pursued, tbe language of tbe statute under wbicb tbe second count of tbe petition was drawn is explicit and unambiguous, and under no view of that statute could tbe judgment of tbis case be sustained.
    Tbe facts in tbe case show tbat Henry L. Flake, tbe defendant, bad no interest whatever in tbe property either as owner or otherwise. Tbis fact does not seem to be controverted. Tbe property belonged to bis wife, Mrs. Laura L. Flake, and she was not made a party to the proceeding, nor was she served with notice as'required by tbe statute. Code 1906, § 3074, expressly provides that notice must be given in writing to tbe owner of tbe property of tbe amount due, and provides further that tbe proceeding shall be against tbe owner of tbe property, and provides further that if judgment shall be given in favor of tbe party giving tbe notice against tbe owner then tbe judgment becomes a lien from tbe date of tbe notice. There is absolutely no pretext of any notice ever being served on Mr. Flake. Tbe defendant, Henry L. Flake, whom it is claimed was notified, testifies distinctly that be did not have a particle of interest in tbe property. This it seems would end tbe case.
    
      Gtirrie & Gurrie, for appellee.
    We apprehend that under the section under discussion, Code 1906, § 3060, any improvements, caused to be put upon tbe land of another by a stranger who was not a trespasser, would be bound by tbe lien, provided further such improvements were made in good faith by tbe person causing them to be made and by tbe person actually making them, and tbe material therefor was furnished in good faith. Why not ? Tbe owner could, not be injured. Tbe lien in that case would be a valid one. Tbe two sections, indeed tbe whole chapter, must be construed together, giving effect to each section thereof, and avoiding all conflicts where possible, and if our interpretation of tbe section is not tbe correct one, then construed in tbe light óf tbe preceding section, section 3059, it becomes a dead letter in our statute.
    Tbe law does not presume that a person, causing improvements of a substantial nature to be put upon the land of another, is a trespasser, but on tbe contrary presumes that be is not a trespasser, and places tbe burden upon tbe owner to show that such person is in fact a trespasser, and there is nothing in this record to show that the appellant was a trespasser.
    On tbe contrary tbe record shows affirmatively that appellant was not a trespasser. Beyond that, it shows that tbe buildings were put there with the knowledge of the alleged owner, Laura L. Flake. The record shows that Henry L. Flake, appellant, and Laura L. Flake, alleged owner, are husband and wife, that they had their residence on one end of the very lot on which these houses were built, that they were occupying their residence at the time; the first answer filed by the defendant, Henry L. Flake, appellant here, alleged that Laura L. Flake, his wife and owner, had made the contract for building the houses; his answer to the amended petition gives notice that he will introduce testimony to prove that in making the contract he acted as agent for Laura L. Flake, his wife and owner. Can it be reasonably contended that she did not, at the time, have actual notice that the houses were being built ?
    Unique as it may be considered at first blush, we submit, as a sound legal proposition, under the facts of this case, that Henry L. Flake, appellant, was the tenant at will, of the owner, Laura L. Flake, and that the contract is binding upon the property of Laura L. Flake under the provisidns of section 3059, much more upon the houses only.
    It is contended by counsel for appellant, that the judgment cannot stand for the reason that the statute requires that the notice be given to the owner. We submit that the word “owner,” as used in the statute means the person with whom the contract for the building of the house, structure, building or fixture is made, whether it be the real owner, his agent, representative, guardian, or tenant as provided in section 3059, or at the instance of “a tenant, guardian, or other person not the owner of the land” as provided in section 3060. To' hold that the word “owner” as used in the statute, section 3014, means literally the person holding the legal title would defeat the very purpose of section 3060, and would destroy the lien in many, perhaps a majority of cases, under section 3059. As well, and better, spit on and sponge out the whole chapter at once, and no longer delude working men and trustful merchants who sell their wares on credit, with this statutory security, when it is to be swept away at a breath on the wings of so fine a technicality. There is nothing of real substance in this objection of appellant.
    The next contention counsel for appellant make is that the judgment is void for the reason that the owner and contractor were not joined as defendants as contemplated by section 3074 of the Code of 1906. To this objection there are several con-. elusive answers: (a) When notice was served upon Henry L. Flake, appellant, who contracted with Guinn, whatever, if anything, he owed Guinn stood in his hands as stakeholder and he became the debtor of appellee to that amount so that it under the statute in question could maintain its suit against him for the amount, unless he paid it over to them. He did not pay the amount, consequently suit was filed, and properly so, against .him as defendant. So far as the plaintiff was concerned he was the only necessary party defendant, under that count in plaintiff’s petition, because by it could be recovered only whatever he owed the contractor Guinn. To that amount appellant under that count, became our debtor so that we could sue him. (b) Under the provisions of section 3063, appellant had the same right, , and it was as much his duty as that of appellees to make the owner of the land and the contractor parties defendant, as did the appellee. That statute provides: “and should any necessary -or proper party be omitted, he may be brought in by amendment, on his own application or that of any other party interested.” If Laura L. Flake desired to be made a party so as to protect her rights why did she not come in on her own application? If the contractor Quinn desired to be made a party why did he not ■•some in on his own application ? He certainly knew about the suit If Laura L. Flake did not know about the suit, which of course as a matter of fact if not in a judicial way she did, and appellant Henry L. Flake desired that she should be made a party, why did he not make timely application, as under the statute he could have done, and have her made a party defendant ? If be deemed Laura L. Flake, bis wife, and tbe contractor, Guinn, necessary parties defendant wby did be not make application and have tbem joined ? lie. was certainly an interested party, being defendant in tbe suit, and properly so; that statute-is comprehensive and general in its terms and gave bim tbe right to cause tbem to be made parties; tbe court would have bad no-discretion in tbe matter. Can be now be beard to complain of bis own neglect, and ask that a judgment be reversed on account-of it ? If be is to suffer thereby, be has worked bis own injury,, tbe statute was before bim, and be can not now complain, (c) By not raising tbe defect of necessary parties defendant by demurrer or other proper plea in’ apt time be waived tbe defect,, and it was too late to complain when be did.
   Mayes, J.,

delivered tbe opinion of tbe court.

This is a proceeding commenced by tbe Central Hardware-Company for the purpose of enforcing a materialman’s lien on-a certain building erected by one Guinn on property belonging-to Mrs. Laura L. Flake. Tbe contract made by Guinn for tbe erection of this building was made with Henry L. Flake, the-husband, and no written consent for tbe erection of this building on her property was ever obtained from tbe wife. This being-tbe case, tbe lien is sought to be enforced only as against the-building, and not tbe land itself. Tbe Central Hardware Company sold certain material to Guinn to go into- tbe construction’ of this bouse, which be failed to pay for, whereupon notice was-served on Henry L. Flake under section 3074, Code 1906. After stop notice was served on Henry L. Flake as required by the1 above section, this petition was filed, seeking to condemn the building alone for tbe debt -due by Guinn to tbe hardware company.

It appears from the record that tbe proceeding was instituted" against Flake alone, and neither Guinn, tbe contractor who bought tbe material, nor Mrs. Laura L. Flake, who owned tire' land on wbicb was situated tbe building, were made parties. It was only upon tbe trial tbat it developed tbat tbe land on which tbe building was situated belonged to Mrs. Laura L. Flake; but. sbe was not tben made a party to it. All these matters were objected to on tbe motion for a new trial; but even if tbey bad been, both became necessary parties to tbe proceeding, and no-judgment'could be properly entered enforcing tbis lien until both bad ben made parties to1 tbe proceeding. Section 3063,. Code 1906, is specific in its requirement tbat “all persons having interest in tbe controversy, and all persons claiming liens on tbe same property, by virtue of tbis chapter shall be made parties to tbe suit; and should any necessary or proper party be omitted,, be may be brought in by amendment, on bis own application or tbat of any other party interested; and claims of several’parties having liens on tbe same property may be joined in tbe same action.” Both were necessary parties to tbe proceeding to enforce any lien against tbe building. Guinn is a necessary party, for tbe reason tbat tbe debt forming tbe basis of tbe lienor’s right, is a debt due Guinn by Flake, if nothing should be due tbe hardware company by Guinn, and Guinn should be given an opportunity to contest tbis claim. Tbe building sought to be condemned is on tbe land of Mrs. Flake, and it is due her tbat sbe is given an opportunity to be beard before tbat building, now on her land and presumably her property, shall be condemned to be sold.

Certainly, under these conditions, both these persons should have been made parties, and because tbey were not tbe judgment is reversed and cause remanded.  