A demurrer lacking the affidavit of defendant and certificate of
counsel is fatally defective, and a decree
pro confesso
may be entered unless something takes place between the filing of
the demurrer and the entry of the decree to take away the
right.
The filing of an amended bill after a demurrer, without first
obtaining an order of the court therefor, and the withdrawal of it
by the complainant's solicitor in consequence, without paying to
the defendant the costs occasioned thereby and furnishing him with
a copy with proper references, do not take away such right.
When one party contracts to erect a building for another party
on land of the latter, and a law of the state gives a mechanics'
lien upon the land upon which the building stands, the parties may
contract that the lien shall extend to other adjoining land of the
latter party.
When the state law gives either an action at law or a remedy in
equity to enforce a mechanics' lien, proceedings in a federal court
to enforce it may be had in equity.
On May 27, 1886, the appellee, plaintiff below, made a
proposition to defendant to construct on its premises a blast
furnace for the sum of $124,000; $80,000 to be paid on monthly
estimates as the work progressed; the balance to be secured, "said
security to be either a mechanic's lien or first mortgage on all
the furnace company's interests in Sheffield, . . . at my option."
This proposition was accepted on June 2. The work was completed and
accepted on April 24, 1888. On June 27, 1888, plaintiff filed in
the office of the probate court of the proper county a statement
for a
Page 149 U. S. 575
mechanic's lien in conformity with the provisions of the state
statute. In this statement, the furnace is stated to be situated at
Sheffield, Colbert County, Alabama, on a site containing about
twenty acres, described as follows: "Twenty acres of land in
fractional section 29, . . . contiguous to the City of Sheffield,"
etc. On September 5, 1888, plaintiff filed his bill in the Circuit
Court of the United States for the Northern District of Alabama to
foreclose this mechanic's lien. The bill avers that a contract was
entered into for the construction of the furnace, that the amount
due was $63,279.43, that a statement of lien had been filed, and
prayed for foreclosure and for general relief. In the bill, the
contract was not set out at length, but it was alleged that it was
in writing, and would be produced at the hearing if necessary.
Attached to the bill of complaint was the statement filed in the
probate court. A subpoena was duly served upon the defendant on
September 6. On October 1, the defendant applied for and received a
copy of the bill. On October 3, it filed a paper which it called a
demurrer, but which did not have the certificate of counsel or the
affidavit of defendant essential to a demurrer, as required by
Equity Rule 31. On the rule day in November (November 5th), a
decree
pro confesso was entered, and on December 19 a
final decree was also entered, finding the amount due as claimed,
the existence of a lien upon the twenty acres, and ordering a
foreclosure and sale. At the final hearing, the plaintiff produced
the lien papers, which were filed in the office of the probate
court, the contract between the parties, a certificate from the
superintendent of the company defendant of compliance with the
terms of the contract, and an affidavit of counsel for the
plaintiff to the genuineness of these documents. At the next term,
and on February 4, 1889, a motion and petition were filed by
defendant in the circuit court to set aside the final decree, which
was overruled on the 15th of February, 1889. An appeal to this
Court was duly perfected.
Page 149 U. S. 576
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered the opinion of the Court.
Inasmuch as the so-called "demurrer" was fatally defective in
lacking the affidavit of defendant and certificate of counsel
required by Rule 31, there was no error in disregarding it and
entering a decree
pro confesso at the November rules.
Equity Rule 18;
National Bank v. Insurance Company,
104 U. S. 54,
104 U. S. 76.
And such decree after the November rules would entitle the
plaintiff to a final decree, as taken on December 19, Equity Rule
19;
Thomson v. Wooster, 114 U. S. 104,
unless something had taken place intermediate to take away such
right. It appears that on the 14th day of November, the plaintiff
filed an amendment to the original bill, which amendment consisted
substantially of allegations that the twenty-acre tract was within
the limits of the City of Sheffield, and that the furnace and its
appurtenances were in the middle of said tract, and occupied more
than one acre of land, and required, for convenience and profit,
the whole of the tract, upon which appears, after the endorsement
of the clerk of its filing, a further endorsement, as follows:
"The filing of this amended bill is erroneous, and the same is
withdrawn; no order of the court having been obtained, ordering the
filing thereof. Henry B. Tompkins, sol. for Complainant."
This proceeding on the part of the plaintiff, it is insisted,
destroyed his right to take the final decree, but this is a
mistake. While, under Equity Rule 28, the plaintiff might, after a
copy of the bill had been taken out of the office by the defendant,
and before plea, answer, or demurrer, amend the bill without order
of the court, yet before he could claim any benefit of such
amendment, he was required to pay to the defendant the costs
occasioned thereby, and without delay furnish it a copy thereof
free of expense, with full reference to the places where the
amendments were to be inserted. As
Page 149 U. S. 577
he had done neither of these things, he could claim no benefit
from the filing of the amended bill, and when he entered upon it a
withdrawal, he left the case to stand as though no amendment had
been attempted. Besides, the defendant, being in default, was in no
position to take advantage of the plaintiff's action in withdrawing
the amendment. There was therefore nothing erroneous in the matter
of procedure, nothing which would compel the court at a subsequent
term to set aside the decree.
While in this motion and petition there are stated many matters
in which it is claimed there was error on account of which the
decree should be set aside, and the defendant given leave to plead,
and while there is a general allegation that it has a full,
perfect, and meritorious defense to the demand set up in the bill,
yet it is not alleged that the contract for the building of the
furnace was not made as stated, or that the statement for lien was
not filed, or that the amount claimed to be due was not due and
unpaid; so that the case is presented of an effort on the part of
defendant to avoid or delay the payment of a just debt. Of course
it need not be said that under such circumstances, a court of
equity will not strain a point to assist a defendant. It is
insisted in this motion to set aside the decree that the twenty
acres described in the bill and decree are the absolute property of
some other person or persons than the defendant. Even if that be
true, we do not see how the defendant is prejudiced. If the
plaintiff has made a mistake and is attempting to sell somebody
else's land, the owner is the party who has the right to complain,
and the defendant, whose property is not touched, has no ground to
object.
But the two principal matters are these: First. It is insisted
that this mechanic's lien depends for its validity and scope on the
Alabama statutes; that under those statutes the lien is limited to
one acre, to be selected by the party entitled to the lien unless
the premises are within a city, town, or village, in which case it
may extend to the entire lot or parcel of land upon which the
improvement is situated; that the bill refers for a description of
the property to the statement filed with
Page 149 U. S. 578
the probate court; that such statement describes the land as
contiguous to the City of Sheffield, and does not show that it is
within the limits of any city, town, or village; that therefore the
limit to which the lien and decree could go was one acre of the
tract, and that such acre was not described; that the amendment
which was attempted to be made averred that this land was in the
City of Sheffield, and was a single lot or piece of ground
necessary for the operation of the furnace, and that only by a
consideration of matters thus presented in the amendment could the
decree properly extend to the twenty acres. It is a sufficient
answer to this contention to say that the bill claimed a lien on
the twenty acres; that nothing in the bill or statement
affirmatively shows that the land was not within the limits of some
city, town, or village, and that the contract which was produced
stipulated for security by mechanic's lien or first mortgage on all
the furnace company's interests in Sheffield. Surely parties can
contract to extend the area of property to be covered by a lien.
Such a stipulation is tantamount to an equitable mortgage.
Ketchum v. St. Louis, 101 U. S. 307,
101 U. S.
316-317; 3 Pomeroy's Eq.Juris. sec. 1235;
Pinch v.
Anthony, 8 Allen 536. The plaintiff, under his contract, was
entitled to a written and express mortgage of the entire realty of
the company at Sheffield, and when he demanded in his bill that the
statutory lien which he had filed should be extended to the twenty
acres, he was only relying upon the promise made by the defendant
that the lien should extend to that tract -- a promise which the
defendant might lawfully make, although, as to the excess of ground
over one acre, the contract may be only in the nature of an
equitable mortgage. This objection to the decree cannot be
sustained.
But the main reliance of the defendant is on the proposition
that the statutes of Alabama provide for an action at law to
enforce a mechanic's lien. This lien being a statutory right, it is
insisted that the remedy prescribed by the statute is the one which
must be pursued even in the federal courts, and that, as the
plaintiff had therefore a right to maintain an action at law in the
circuit court, he could not proceed by a suit in equity, which, in
the federal courts, can only be maintained
Page 149 U. S. 579
when there is no adequate remedy at law. While the Alabama
statutes in force at the time of this suit, (Code Ala. 1886,
section 3048) in terms authorize the foreclosure of a mechanic's
lien by bill in equity without alleging or proving any special
ground of equitable jurisdiction, yet the contention is that the
plaintiff cannot avail himself in the federal court of this last
statutory remedy, although he could pursue either in the state
courts, because, as stated, if there be an action at law, there
cannot, under the settled rules of federal procedure, be also a
suit in equity. It certainly would be curious that state
legislation which gives to a party the choice, in the state courts,
between an action at law and a suit in equity to enforce his rights
enables him to maintain in the federal courts only an action at
law, and forbids a suit in equity, when the latter is the ordinary
and appropriate method for enforcing such rights, and the
foreclosure of a mechanic's lien is essentially an equitable
proceeding. As said by MR. JUSTICE FIELD, speaking for the Court in
Davis v. Alvord, 94 U. S. 545,
94 U. S.
546:
"It is essentially a suit in equity, requiring specific
directions for the sale of the property, such as are usually given
upon the foreclosure of mortgages and sale of mortgaged
premises."
Idaho & Oregon Land Improvement Co. v. Bradbury,
132 U. S. 509. And
it may well be affirmed that a state, by prescribing an action at
law to enforce even statutory rights, cannot oust a federal court,
sitting in equity, of its jurisdiction to enforce such rights,
provided they are of an equitable nature. In
Robinson
v. Campbell, 3 Wheat. 212,
16 U. S. 222,
it was said:
"A construction, therefore, that would adopt the state practice
in all its extent would at once extinguish, in such states, the
exercise of equitable jurisdiction. The acts of Congress have
distinguished between remedies at common law and in equity, yet
this construction would confound them. The court therefore thinks
that to effectuate the purposes of the legislature, the remedies in
the courts of the United States are to be at common law or in
equity not according to the practice of state courts, but according
to the principles of common law and equity, as distinguished and
defined in that country from which we derive our knowledge of those
principles."
Hooper
Page 149 U. S. 580
v. Scheimer, 23 How. 235;
Sheirburn
v. Cordova, 24 How. 423;
Whitehead v.
Shattuck, 138 U. S. 146,
138 U. S. 152;
Scott v. Neely, 140 U. S. 106;
Smyth v. N.O. Canal & Banking Co., 141 U.
S. 656.
But, further, the defendant contends that by the state law the
lien was limited to one acre of ground. The plaintiff claims that
by virtue of his contract and the filing of his statement of lien,
he was entitled to a decree subjecting a tract of twenty acres to
the satisfaction of his debt. He therefore claims rights of an
equitable nature, arising from something more than the statute and
based partly upon his contract. Certainly such a claim as that is
one of an equitable nature, and to be adjudicated only in a court
of equity.
These are all the matters of importance presented. We see no
substantial error in the record, and the decree is
Affirmed.
