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decided: May 10, 1893.



Author: Brewer

[ 149 U.S. Page 576]

 MR. JUSTICE BREWER, after stating the case, 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, 76.And such a 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"The filing of this amended bill is erroneous and the same is withdrawn, no order of the court having been obtained ordering the filing thereof.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

[ 149 U.S. Page 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 or 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 defence to the demand set up in the bill, yet it is not alleged that the contract of 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 delar 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 mechanics' 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

[ 149 U.S. Page 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 mechanics' 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. 306, 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 mechanics' 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 ...

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