.'NEAL PIPE .. FOUNDRY 00. fl. But.LOCL
looked through the 'testimony carefully, and I cannot find the slightest evidence of any bad faith on the intervenor's part. The exceptions to the report will be sustained. The intervenor's in the sum of $4,322.23 will be allowed, but, inasmuch as the master reports that intervenor is indebted to tbe receivers in the sum of 81,419.99, the receivers will be permitted to file a counter-claim for that sum, and it will be allowed, and deducted from the sum of $4,322.23, making intervenor's net allowance, $2,902.24. A reference back to the master is unnecessary.
McNEAL PIPE &
BULLOCK et ale
(C'if'IlUit Court, 8. D· .Alabama,
MECHANICS' LIENS-PROPERTY SuBJECT TO-CITY WATER'WORKS.
Code Ala, 1876, 8440, giving mechanics or material-men doing work or material for improvements on land, contract w,ith the owner, or w'lth one having such a contract with the owner, a lien on the l!,ud and improvements, does not entitle one furnishing material used .by contractors In cQnstructing city for a water company to a lien against the pipes. appliances, etc., of the plant, some of which are laid under the streets of the CIty, as such a corporation Is quaJJi public, and, in the absence of ,an express statutory provision, property intended for public use is not liable to luch alien., A complaint seeking the enforcement of such an alleged lien, not averring that the defendant water company is the owner of the land on which the works sought to be subjected are situated, is insufficient for that reason. Such a complaint is also defective if it fails to allege that at the time plaintiff gave the defendant water company notice of its alleged lien the latter was indebted to the contractor under the contract.
At Law. On demurrer to complaint. Samuel R. Bullock & Co.,contractors, of New York, with the Bienville Water Supply Company; of Mobile, laid down in Mobile city and county the pipes of an extensive system of water-worlrs, bringing water from Clear creek,-ll miles distant. When completed, the pipes were, as a part of the plant, turned over to the Bienville Water Supply Company of Mobile. This company, since the fall of 1887, has been in the operation of this system, which has become the main source of ,:water supply for the city of Mobile.' The action is brought by the manufacturers of the pipe to fix a lien thereon under the Dlechanic's lien law of Alabama., Code1876, § 3440, provides that any person doing work furnishing material for the improvement of or erection of a building on mnd under a contract with the owner or, his agent, or as a subcontractor under one having such a contract, shall have a lien on the land and improvement to the amount of his work done, Olark Olark, for plaintiff. Hamutons Gaillard aud Ovei'aU Be8tor, for defendants.
!1'oULlIIN, J. It appears -frottl the declaration that the BienvilleWa:ter Supply Company is a public corporation or quasi public corporation
of sucb a nature, .and the proper.ty sought to be condemned to the alleged lien is of such a nature, ,thatit e;,h(:juld not be subject to lien claimed by the plaintiff in his :complajnt, on grounds of public necessity ll.ndconvenience. appears tha,t some oOhe pipes and connecting appliances which are sought to be in this suit a:re laid along or under the p,ublic roads of the and the public streets of the city of.Mobile,.(;>r placed thereon. In the absence of an express statutory provision authorizing it, a meChanic's lien. cannot be enforced against property such as buildings, machinery, etc., designed for public use, and ,which are erected or placed upon land belonging to a municipal corporation. And considerations founded on grounds of public policy forbid that the law,pr.oviding for liens of mechanics and material-men should be held to apply to buildings, machinery, pipes, and the like, constituting a part of the water-works erected for the purpose of snpplying water to a municipal <'.orporation and to its citizens, whether erected on lands, of themnnicipality or not. See Phil. Mech. Liens, § 180; FOlJterv. Fowler, 60 Leonard v. Oityof Brooklyn, 71 N. Y.498j "Wilkinson v. Hoffman, 25 Fed. Rep. 175,and authorities cited in note on page 175. lam therefore· constrained to· hold that the provisions of the mechanic's lien law of this state do not apply in this case. There are,· various other grounds of demurrer to the. declaration assigned, and, among them, that the complaint and summons, with the indorsements thereon,show that the suit was not commenced within the time prescribed by law in such cases, and that the lien claimed has been lost,even if it could otherwise have been maintained. I am inclined to think that this point should be raised, by plea. I therefore express no opinion on it as now presented. There are several other grounds of demurreJ;' that I consider well taken, viz., that the complaint fails to show that the Bienville Water Supply Company is,pr wasthe owner or proprietor of the lands, described therein against which a Him is sought to be ellforced, or orallY lands in Mobile county on wqich: the buildings and improvements sought to be subjected to a lien are situated; that it taits .to aver that there is, or was at the time the plaintiff gavenotice to the Bienville Water Supply. Company of the said alleged lien, any unpaid, balance due by said Bienville Water Supply Company to the defendant S.R. Bullock & Co. i and' that it seeks to fasten a lien on certain personal property rlisconnected with any lands or buildings or improvements on land. 'fhe complaint, however, could be amended to meet these objections, if an amendment would avail the plaintiff anything. Tpere are other grotuids of demurrer that! do not think are well taken;, but it is unnecessary for me to notice them, particularly in view of my ruling on the delnurrers already specifically mentioned.· It is considered by the court that the demurrers to the complaint, so far as ,it claims a mechanics' or material-men's lien on 'the property of the Bienville Water Sup'ply Company, be and the same are hereby sustained. I enter a judgment sustaining thtl demurrers generally, inasmuch as the ruling on the ground of demurrer first noticed is ,fa.tal·to plaintiff's lien claim set up in his declaration.
·tEMOlli]j;. V. DU1IKLlN COUN'rY.
LEMOINE'll. DUNKLIN CoUNTY.
(Oircuit (fourt, B. D.ltfia8ouri, 1!J. D. April 27,1889.)
VENDQR; AND VENDEE-RIGHTS AND REMEDIES-PUBLIC LANDs-LnnTATION OF ACTIOj!fs..
A bill alleged the purchase Of swamp lands from the defendant county 30 years before, the payment of the price in full, and the issue of. certificates entitling the holder to a patent from the governor; and further averred.the duty of the governor to issue the patent until a short time afterwards. when .power to issue patents was conferred on the county court; and the bill asked that the county be decreed to convey the legal title. Delil, tb.at as· the bill trust. 8S to the legal title, and disclosed the relation of truliUle and ceatui as there were 11,0 allegation!! concerning the possession, and it was DQt shown that the county had done anything in disaffirmance of the trust until a short time before suit. nor that third persons had acquired interv.ening rights,. the court.Qould not declare on dem.Urrer that complainant was barred by the statute of limitations. . Neither does the bill disclose such laches
will bar the right to relief.
Wb,atever' constructive possession the county may have by reason of its . bef)ig'ves'ted' with legal title does not barcomplainant'e rigbt.·' Actual ad· verse posllessionis necessary fot tbat purpose.
In Equity. ' On demurrer to amended bill. Suit by Louis R. Lemoine against Dunklin county.· . Outnningham & Eliot, for. complainant. Gear.qe' H. SluiildB and Elene:iPwJ Smith,: for .defendant·
. THAYER, J. The case pDeSeJ1ted by the bill is that of a vendee·of land who has' paid the purchase Jmoney, seeking to have the legaLtitle divested out of the vendor ahd; vested in himself. It has long been settled that the relatiQuofvendor and vendee" under such circumstances,isthat of trustee and cestui que tr'ust. 2Story, Eq. lur. §789. When the purchase money has been; paid, the vendor becomes a mere trustee of the legal title for the purchaser. 1 PerrYI Trusts,§§ 231, and 122. Trusts of that character ulldoubtedlyanswer:to the definition ordinarily given of an implied truat,being trusts that are not expressly: declared, but are inferred from a given contract or; transaction. The terms" express," "implied," "resulting," and "constructive," as applied; to trusts, have not always been'used with technical accuracy. In some cases a trust has heen termed an express trust that was,jnrealityan implied trust, and inatancesare quite common where constructive trusts have been spoken of as implied trusts, and mceVe?1sa. In reality'resulting and constructive trusts are spec:iesof implied trusts. These remarks are made' because great stress was laid on the fact that the trust,described by the bill is an implied trust, and important consequences are deduced from suchclass-, ification.,. Beeause it is of the nature of an implied trust, it is contended that the relief ,sought by the bill was barred 10 years after. the creation .'of the trust/in analbgywith the·iule.;tkat prevails at law inactioqs;to rec0verreal property.:. .Now;!th.eibilL.shaws caaemust be dis-