
    John M. Kirk vs. Louis B. Taliaferro, Administrator of Henry Bell, deceased, et als.
    Where a mechanic recovered a judgment under the act of 1838, for work done or materials furnished in the erection of a house or any building, he might resort to a special execution, and have the specific property sold; or he might sue out a general execution against all or any of the defendant’s property ; but if he adopted the latter course, he thereby waived or abandoned Ms special lien ; and he could not therefore, after the issuance of a general execution, and a levy of the same on the specific property, and a sale thereof, at which he became the purchaser, enforce the special lien thus voluntarily abandoned, by a bill in chancery.
    The statute of 1838, passed for the benefit of mechanics, was never designed to authorize a tenant to incumber the freehold by any description of liens. And the legislature could have conferred no such power, even if they had intended it; a mechanic therefore has no lien upon the freehold, for repairs done on the buildings under a contract with the tenant.
    The act of 1838, giving mechanics a lien on dwelling-houses, stores, warehouses or other buildings, erected by them, for the satisfaction of the price contracted to be paid therefor, and for materials furnished, &c. does not give any lien for mere repairs; it refers only to contracts for the erection of buildings.
    ERROR from the vice-chancery court, held at Columbus in Lowndes county ; Hon. Henry Dickinson, vice-chancellor.
    This was'a bill filed by John M. Kirk against Louis B. Tali-aferro, administrator of the estate of Henry Bell, deceased, David Conner, James Jones and Mary E. H. Shotwell, in the vice-chancery court at Columbus, to enforce a mechanic’s lien. The bill charged that complainant on the 1st of January, 1839, was a mechanic and carpenter, and was-employed to build additions to, and make improvements upon a tavern standing on lots No. 1 & 2, in Square 4, South Main-street, in the town of Columbus, known as the “ Columbus Hotel,” (being leasehold property from the trustees of the Franklin academy,) by Henry Bell, since deceased, and David Conner, doing business in the name and style of Bell & Conner ; that the agreement between them'was not in writing; but complainant instituted suit within six months in the circuit court of the county of Lowndes, by capias ad respondendum, against Bell & Conner on his account, for the work done, and materials furnished in building the addition and making the improvements on the hotel under their contract, and recovered judgment on the sixth of January, 1840, for $>653 50 ; the record and proceedings in the suit at law were made exhibit A to the bill. That Bell & Conner before the rendition of the judgment, transferred and assigned all their right, title and interest, in and to the hotel; that execution was issued on the judgment, on the 18th of January, 1840, and returned nidia bona, and that the judgment was unpaid; that another execution was issued ou the judgment, which was levied on said lots and hotel, and the same were sold and purchased by complainant on the 20th of February, 1843, for the sum of thirty dollars, and the plaintiff’s deed to the same was made exhibit B to the bill. The administrator of Bell, David Connor, James Jones the tenant in possession, and Mary E. H. Shotwell, under whom Jones held, were made defendants. The prayer was that complainant’s mechanic lien and statutory mortgage might be foreclosed, and his judgment satisfied by selling the lots and hotel, or that the same might be placed in the hands of a commissioner until the rents and profits should pay the debt due complainant. On the 20th day of August, 1844, complainant filed an amended bill, stating that since filing his original bill he had been advised that Thomas Christian, administrator of Jacob B. Cozens, William T. Symons, Maul-din, Montague & Co., had or pretend to have some interest in said lots and hotel, and he therefore prayed that they be made parties to the bill. Complainant stated that he was advised he acquired no valid title to the lots and hotel by his purchase under the execution at law. That he furnished the materials and performed the work aforesaid according to contract; and he prayed as in the original bill.
    The defendants demurred to the bills, and assigned as causes f demurrer
    
      “ 1st. That complainant by his own showing does not make out such a case as entitles him to have relief in this court.
    “ 2d. Said complainant shows that if he had a statutory lien he has elected to waive the same.
    “ 3d. The bill shows the property was sold under the execution issued upon the judgment, to which the same is now sought to be subjected.
    “4th. The bill shows that if the complainant is entitled to any relief, it is at law.
    “5th. The bill does not show that any building was erected.”
    The vice-chancellor sustained the demurrer, and ordered both the original and amended bills to be dismissed. To reverse which the complainant now prosecutes this writ of error.
    
      W. P. and J. F. Jack, for plaintiff in error.
    It is not pretended that complainant was not originally entitled to the mechanic’s statutory lien. Has he then, subsequently waived his rights, or has he attempted to enforce them in an irregular way ?
    His contract being verbal, created no lien without the institution of a suit at law, within the time prescribed.
    The judgment operated as a notice to third parties, in the place of a recorded contract. If the sale under it was valid, it vested the absolute title to the hotel, in plaintiff, and he must now be considered the true owner; if otherwise, it was the merest nullity, and cannot destroy a lien already attached; and especially one favored in law, as this is declared to be. The mechanic’s claim is favored in law, and the statutes will be liberally construed in his behalf. 2 H. R. 874. The lien in this case was enforced by bill in equity. If complainant has heretofore mistaken his remedy, would it not be meting to him now the sternest justice, to shut the very door of redress through which he may obtain his rights'? Certainly it would not accord well with the spirit of partiality manifested in the foregoing case.
    In the case of Andrews v. Washburn, 3 S. & M. 109, it is decided that under the act of 1838, in relation to mechanics’ liens, a “ bill in chancery to enforce a mechanic’s lien, alleging a contract to perform work on certain buildings, the performance of the work according to the contract, and the institution of a suit at law, for the price of the work, within six months from the date of the contract and the creation of the lien, by operation of law, is not demurrable, but will be sustained, and the lien enforced.”
    This case differs in nothing from the one now before this court, except the sale in the present instance. This was induced, by a mistake of the party, as to the mode of enforcing his-rights. So soon as this was discovered, he promptly asserted them in the proper tribunal.
    If he acquired no title at law, defendants are not damnified ; and it would be an absurdity to say that a proceeding which was a nullity could annihilate rights attaching under a statutory lien. Counsel cite the act of 1840, and the adjudications under it; they can have no weight in this case, since our rights accrued previously, and we. seek to enforce them, under the act of 1S38 and prior statutes. Neither can the decisions of other states upon similar statutes, where as in this case they are confronted by the determinations of our own court.
    
      Boykin and Crane, for defendants in error.
    The complainant, according to the face of the bill, had an adequate remedy at law. He instituted suit as directed in How. & Hutch. 378, sec. 24, by capias ad respondendum, his contract, made in 1838, was to be enforced according to the provisions of that act; under this act, the amount due to a mechanic is properly ascertainable in a court of law; and his statutory lien, like the lien of a judgment, is to be made effectual by 'fieri facias; this is determined in Foust v. Wilson, 3 Humph. 31, where a bill was filed to enforce the lien, precisely as in this case, to which there was a demurrer, and the same was sustained.
    In Richardson v. Warwick, 7 How. 141, 142, the court decide that the act of 1840 was made for the benefit of mechanics, that they may preserve their lien by pursuing the statute; “ yet as it is a benefit provided for them, they may abandon it, either before or after judgment.” The statute directs they may enforce their lien, and realize the amount of it, by issuing a special execution. “ If they elect not to issue their special execution, under the statute, R would amount to an abandonment of their special lien, and they would occupy the same position with other judgment creditors.” This case is precisely similar in its features, and is applicable to the one before the court. The bill states that the defendants occupied the property; that they, Bell and Conner sold their interest (so they were owners of it.) Now they sold before judgment, yet the complainant having instituted his suit according to the statute before the alienation, his statutory lien would have a preference. From the statements of the bill, then, what prevented the complainant from realizing his money if he had pursued the dictates of the statute by issuing a special execution 1 If he has not done so, it is his own fault or ignorance of law, and he must be considered, according to the decision in 7 Howard, as having waived his special lien and assumed the position of a general judgment creditor; and he acquired as valid a title under his deed from the sheriff, as purchasers in general under executions do, subject to any prior liens. He had an adequate remedy at law which he did not pursue, and this court will give no relief.
    The bill and exhibits show that judgment was recovered, and the property sold by execution. Complainant shows no valid legal reason why he did not acquire a title by his deed, nor why a sale in accordance with the statute, would not vest the title of the property in him by virtue of his deed.
    In Thompson v. McGill, Freem. C. R. 401, the court decided that a person, by proceeding irregularly, may waive an equitable lien, and that a sale under execution was a waiver. The chancellor says, he knows of no rule or principle that will allow the same property to be sold twice, either to the same or different persons to pay the same debt. Complainant proceeded irregularly to enforce his lien at law, and thereby waived his statutory lien, and is only a general purchaser under execution.
   Mr. Chief Justice ShaRKey

delivered the opinion of the court.

The complainant filed this bill in the vice-chancery court, to enforce a mechanic’s lien. It is alleged, in the bill, that about the first of January, 1839, the complainant made a verbal contract with Bell and Conner, to do certain repairs and make certain improvements on a house in the town of Columbus, known as the Columbus Hotel, then in possession of Bell and Conner, under a lease from the Trustees of Franklin Academy. On this contract, suit was instituted within six months, as the statute requires, and judgment afterwards recovered, Bell and Conner in the mean time having sold out. Sundry executions were issued on the judgment, which were returned nulla bona. Ultimately an execution was placed in the hands of the sheriff, and he levied it on the house and lot, on which the work had been done, and sold it to the corqplainant, who received from the sheriff a deed. By an amended bill other parties are made defendants, as claiming an interest, but what that interest is, or how it was acquired, does not appear. The amended bill also contains an allegation, that the complainant acquired no title by his purchase at sheriff’s sale, but it does not state what the defect is. The prayer is, that the original lien may be enforced by a sale of the property. The vice chancellor dismissed the bill on demurrer, and correctly, as we think, for the following reasons :

We decided, in the case of Richardson v. Warwick, 7 How. 131, that after judgment on the contract, the plaintiff had two remedies; either he might resort to a special execution, and have the specific property sold, or he might waive that right, and sue out a general execution against all or any of the defendant’s property ; but that if he adopted the latter mode, he thereby abandoned his special lien. That decision was made under the act of 1840, but this case must be governed by the act of 1838. The statutes so nearly resemble each other in this particular feature, that the same principle will apply. By the act of 1840, the party was bound to have his contract recorded, or to institute suit within twelve months. On his judgment he was entitled to his special execution, or order for the sale of the property, if he preferred that course. Under the act of 1838, when the contract was not in writing, suit was to be commenced within six months, and when judgment was recovered, the plaintiff might resort to a court of chancery to enforce his specific lien. 3 S. & M. 109. But if the plaintiff should think proper, under the act of 1838, to resort to a general execution on his judgment, as he undoubtedly had a right to do, it must be as much an abandonment of the special lien, as a similar course would be under the act of 1840. This the complainant did, and actually had the specific property sold, and became the purchaser. He now asks also to have his special lien enforced, on the ground that he acquired no title, but he fails altogether in showing any defect of title, unless we may infer such fact from the allegation that Bell and Conner sold before judgment. That averment, however, does not seem to have been framed with that view as it is contained in the original bill, whereas the allegation that he acquired no title is in the amended bill. The sale by Bell and Conner was mentioned doubtless as a circumstance, to authorize complainant to proceed against parties who might claim under them. But their sale might have been void as to creditors. For anything that appears, then, the complainant may have acquired a good title to the interest held by his debtors.

But there is an objection to the complainant’s right to relief, which is still more formidable. It is distinctly stated in the bill, that Bell and Conner had a “leasehold property from the Trustees of Franklin Academy.” When the lease commenced, or what was the term, does not appear. It is stated in another place, that Bell and Conner before the judgment, transferred and assigned all right and title which they had to the hotel, by which we can only understand that they assigned their term. The statute of 1838 was certainly never designed to authorize a tenant to incumber the freehold by liens of any description. It may have been that the lease commenced before the act was passed; if so, the legislature was as destitute of power to effect such an object, as it manifestly was of any such intention, to say nothing of the power to authorize such an incumbrance by tenants on contracts made after the act. The act only contemplated the creation of such liens by the owner of the freehold, or at most, a tenant could only incumber his term. The truth is, the act does not give any lien for mere repairs; it only refers to a contract for the erection of buildings.

The decree is affirmed.  