Coleman v. Freeman

[1,] Where a statute creates a specific lien, in favour of masons and carpenters, on buildings erected by them, and also gives them a specific remedy for the enforcement of such lien, a court of equity has no jurisdiction to enforce it, unless there be some impediment or difficulty charged to exist, which would render the remedy given by the statute unavailable.

In Equity, Bill and demurrer. Tried before Judge Alexander, in Muscogee Superior Court. May Term, 1847. N This was a bill in equity, brought by the plaintiff in error, against the defendants in error, in Muscogee Superior Court, returnable to May Term, 1847. The complainant alleges by bis bill, that in 1846, at the instance and request of said Williamson M. Freeman, the complainant, as a mason, entered into a contract with said Freeman, for the laying of brick in the construction of a bouse, and also for plastering, and furnishing materials for finishing and completing the same. That afterwards, in pursuance of the said contract, the said Freeman being in possession of the premises upon which said work was to be done and performed, the said lot being in the city of Columbus, and distinguished in the plan of said city as lot number 195, on Broad Street; the complainant did perform the work on said premises, as a mason, in constructing said house, and* in furnishing materials for finishing the same, to the value of over one thousand dollars;- a hill of particulars of the work done,- and. materials furnished, is appended to the hill, with prayer of reference to the same. That, after the completion of the work specified, and the furnishing of materials- as aforesaid, he entered,- and caused to he recorded, in the clerk’s office of the Superior Court of the said county of Muscogee, his said claims thereon,-in terms of the statute in such cases made and provided; to which claim so recorded, he prays leave of reference as often as- necessary. That after the completion ofsaid work, and furnishing materials as aforesaid, the defendant Freeman, being still possessed of said premises, sold and transferred,,the possession of said premises to Edward Barnard the other defendant in error, who entered thereon, and is now in the occupation of the same. And that the said Barnard, at the time of, and before he purchased said premises as aforesaid, had notice of the complainant’s claim, and knew that the saíne was due and unpaid, and also- that the same had been recorded in proper time, in the proper office, according to the provisions of law; and having such notice as aforesaid, of said facts,- the said Barnard required and caused the said Freeman to give' him an indemnity against the said claim of the complainant, and that said Barnard is now in possession, after the said indemnity so given, or has reduced the same to cash or its equivalent. That the' said Freeman is entirely insolvent, and complainant can only secure the demand due to him as aforesaid,-by having his said lien enforced by the sale ofsaid premises. The bill then prays, that the defendants may account with' the complainant, and that said premises may be sold for the purpose of satisfying the said complainant’s claim and enforcing his- lien on the same, and for further relief’ &c.- At the return term of this hill, the defendants, by their counsel, filed a general demurrer, alleging that, from all that appeared from the said bill, the complainant had an ample, complete and adequate- remedy in a court of law, and for that cause should not be further entertained ; and for further cause alleges, that the bill o-f complaint set forth no lien, there’ being no exhibit of the' same in- or to the’ said bill. At the said term, Judge Alexander presiding, the bill and demurrer came' on- to- be argued and- determined-; whereupon, after argument, the Court below sustained the demurrer aud dismissed ■the bill, and the complainant by his counsel excepted, and, assigns .the said decision for error.