Opinion
7 Div. 2.
June 18, 1931.
Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.
Miller Miller, of Gadsden, for appellant.
By the contract the maturity of the debt was extended for more than ten months from the delivery of the last item. The right of action was suspended until maturity of the installments, which was beyond the six months allowed for bringing suit upon the materialman's lien. Hence complainant cannot maintain this suit. Lane Bodley Co. v. Jones, 79 Ala. 156; Cutcliff v. McAnally, 88 Ala. 507, 7 So. 331. If complainant had a lien at the time of respondent's bankruptcy, it would not be affected by such bankruptcy, and hence her going into bankruptcy would not give complainant a right of action. Shapiro v. Thompson, 160 Ala. 363, 49 So. 391. Again, if unaffected by the bankruptcy, and was subject to respondent's claim of exemption, complainant's claim would have no standing in a state court. Lane Bodley Co. v. Jones, supra.
W. T. Murphree, of Gadsden, for appellee.
The authorities cited by appellant were actions at law, and are inapt. The right to proceed in equity is given by statute. Code 1923, § 8842. Ordinarily the statute of limitations must be specially pleaded. Garrison v. Hawkins Lbr. Co., 111 Ala. 308, 20 So. 427; Cartwright v. West, 173 Ala. 198, 55 So. 917. At any rate, the transaction was not one for cash, and the debt matured in monthly installments. There was no new trade, but simply a fixing of the time of payment; no notes being executed. No payments were made, and the payments agreed to be paid monthly up to the time of filing the bill were due and unpaid.
The appeal is from a decree overruling demurrer to the bill as amended to enforce the materialman's lien on real property improved.
The original bill, exhibits, and the amendment will be considered together as one pleading, and may supplement the other on demurrer. Grimsley v. First Ave. Coal Lbr. Co., 217 Ala. 159, 115 So. 90.
The right to proceed in equity for the enforcement of liens of this character is given by section 8842 of the Code.
The allegation of the bill is that, after the home was finished, the parties had an agreement as to when the price of the materials was to be paid. The debt therefore matured in the agreed monthly installments averred, and this was not a novation of the building contract with the owner, and not a discharge of the lien thereon.
A court of equity will not enforce the claim of respondent that the suit was brought before the claim accrued. It is averred the installment payments were not made before the bankruptcy, and she may not, while in default and bankruptcy, secure a homestead freed of the builder's lien, under an agreement of extended payments or accrual of the claim. The suit was not instituted before the maturity of the debt. Lane Bodley Co. v. Jones, 79 Ala. 156; Cutcliff v. McAnally, 88 Ala. 507, 7 So. 331. The suit for lien was within six months after the debt accrued according to the contract fixing the due date thereof. Section 8855, Code; Lane Bodley Co. v. Jones, supra.
The bill averred that a part of the debt had matured according to contract and when the bill was filed; and, if the entire debt had not matured, no apt ground was directed to that phase.
Affirmed.
ANDERSON, C. J., and SAYRE and BROWN, JJ., concur.