Mississippi Supreme Court, 1945

Pincus v. Collins

Mississippi Supreme Court · Decided May 28, 1945 · Griffith

22 So. 2d 361; 198 Miss. 283; 1945 Miss. LEXIS 194 (Southern Reporter, Second Series)

Counsel

J.E. Stockstill, of Picayune, for appellants. The lien for mechanics and materialmen is a statutory creature. There is no such lien at common law, and the only remedy is under the statute. Jones et al. v. Alexander, 10 Smedes M. (18 Miss.) 627; Ehlers, Adm'r, v. Elder, 51 Miss. 495 . The phrase in the contract between Collins and Pincus "it is further agreed that the party of the first part shall retain a lien upon the above described house, until same has been paid in full," means nothing more than reference to the mechanic's or materialman's lien provided by the statute, because there is no lien, either legal or equitable, under the common law of Mississippi or any of the other states of the union having statutes creating a lien for the benefit of materialmen. Dinkins v. Bowers, 49 Miss. 219 ; Cox v. American Freehold Land Mortgage Co. of London, 88 Miss. 88 , 40 So. 739-741; Weathersby v. Sinclair, 43 Miss. 189 ; Buchanan v. Smith, 43 Miss. 90 ; Ehlers v. Elder, supra; Van Stone v. Stillwell Mfg. Co., 142 U.S. 128 ; Withrow Lumber Co. v. Glasgow Inv. Co., 101 F. 863; Mushlitt v. Silverman, 50 N.Y. 360 ; Grace v. Nesbitt, 109 Mo. 9, 18 S.W. 1118; Laswell v. Presbyterian Church, 46 Mo. 279; Cameron Co. v. Beach, 44 Okla. 663 , 146 P. 29; Christy v. Union Oil Gas Co., 28 Okla. 324 , 114 P. 740; 40 C.J. 40, notes 61, 62, 63, 64, p. 64; 19 R.C.L. 872; 19 Standard Enclyopedia of Procedure, p. 588 (1918 Ed.). It is well settled that when a party has failed to comply with the statutory provisions, he is not entitled to equitable aid in the establishment of a mechanic's lien. Dinkins v. Bowers, supra; Dodds v. Cavett et al., 133 Miss. 470 , 97 So. 813; Toop v. Smith, 181 N.Y. 283 , 73 N.E. 1113 ; McCune Owens Co. v. Snyder, 18 Ohio Cir. Ct. 24, 9 Ohio Cir. Dec. 572; Withrow Lumber Co. v. Glasgow Inv. Co., supra; Shackleford v. Beck, 80 Va. 573 -577; Van Stone v. Stillwell Mfg. Co., supra; Slack v. Collins (Ind.), 42 N.E. 910; Turnes v. Brenckle, 94 S.E. 495; Ward v. Yarnell et al., 173 Ind. 535 , 91 N.E. 7; Logan Planting Mill Co. v. Aldredge, 60 S.E. 783; Fairley v. Winchester Dr. Co., 29 S.W. 446; Canton Roll Mach. Co. v. Rolling Mill Co., 155 F. 321; Wyman v. Quayle, 9 Wyo. 326 , 63 P. 988; Houston Lumber Co. v. Hunt, 96 Kan. 778 , 153 P. 554. The phrase from the contract above shown is insufficient in language to be construed as a mortgage on the property between the parties, or a lien contract that would be sufficient in its terms to convey, or show an intention to convey, the house and lot of the defendants, or even the house, to secure the payment of the debt. The complainant is asking the court to make a contract for him that will secure his debt, which the complainant failed to make for himself at the time of entering into same. Courts will not make or add to a contract for the parties; they must stand on the contract made between them. See Pickett v. Buckner, 45 Miss. 226 ; Williams v. Stratton, 10 Smedes M. (18 Miss.) 418; Bank of Mobile v. Lewis, 80 So. 179 ; Bryan v. Coward, 21 Ala. 92 ; Stollenwreck v. Marks (Ala.), 65 So. 1024; Westinghouse Electric, etc., Co. v. Brooklyn Rapid Transit Co., 263 F. 532; In re Vicksburg Bridge Terminal Co., 22 F. Supp. 490 ; Code of 1942, Sec. 853; 37 C.J. 317, Sec. 20; 41 C.J. 273, Sec. 1, p. 285, Sec. 17, p. 287; 19 R.C.L. 301; Kent's Commentaries on Real Property, p. 158; Hawley McGregory on Real Property, p. 252. J.M. Morse, of Poplarville, and R.E. Steen and Grayson B. Keaton, both of Picayune, for appellee. The express contract in writing creates an equitable lien in a court of equity. Mason v. Stroud, 155 Miss. 829 , 125 So. 408 ; 37 C.J. Liens, Secs. 19, 20; 3 Pomeroy's Equity Jurisdiction (4 Ed.), p. 1237. The word "lien" when used in a contract creates an instrument similiar to mortgage or deed of trust. Andrews v. Meeks, 6 How. 554; Stuart v. Pickett, 193 Miss. 455 , 10 So.2d 207 ; Dorsey et al. v. Latham, 194 Miss. 253 , 11 So.2d 897 ; U.S.F. G. Co. et al. v. Sunflower County et al., 194 Miss. 680 , 12 So.2d 142 -144. The statute of limitations which controls the written contract is a six year statute. Code of 1942, Sec. 722.

Opinion of the Court

Griffith, J.,

delivered the opinion of the court.

Under a written contract, signed and acknowledged by all the parties, appellee furnished the material and constructed a dwelling house for appellants. Certain payments were to he made at the beginning of the work and at the completion and still further payments were to he *287 made monthly thereafter, and for the security of these payments, the following stipulation was inserted in the contract:

“It is further agreed that the party of the first part shall retain a lien upon the above described house until same has been paid in full. ’ ’

More than one year after the last payment had become due, appellee filed his bill to foreclose the lien to make the balance of the money. Appellants interposed the defense that all that appellee had under the contract was a mechanic’s lien, and that this was barred. Under a stipulation by the parties, this was the sole question to be determined by the court.

Appellants argue that a mechanic’s lien is unknown either at law or in equity, and .that such a lien exists only by statute and can be enforced only as the statute provides. This is true, but it does not prevent the creation of a contract lien in the nature of a mortgage to cover the price under the mechanic’s or materialman’s contract, and that done, the only remaining question is whether the taking of the contract lien has waived the mechanic’s and materialman’s lien, a question which does not arise here. And if it be the purport of appellants’ argument that all that was meant by the quoted stipulation was to give a mechanic’s lien, we-cannot agree; for it was not necessary, to insert the stipulation if that was all that was meant, since the law would put in the mechanic’s lien without any provision to that effect.

We must ascribe tó the parties a real purpose in the inclusion of the stipulation and we must find the purpose from the terms used. Simply defined, an equitable lien, when created by contract, is the right by which a creditor is entitled to obtain satisfaction of his debt by resort to specified property belonging to the debtor, and no particular form of expression is necessary in such a contract so long as it is clear that the debtor intended to create *288 the encumbrance. While the language here used is awkward, it is sufficient to disclose the intention, and the court was correct in giving it enforcement.

Affirmed.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.