Opinion
6 Div. 123.
May 20, 1943. Rehearing Denied June 10, 1943. Further Rehearing Denied October 14, 1943.
Appeal from Circuit Court, Jefferson County; E. M. Creel, Judge.
Bill in equity by Tarrant Land Company against Alabama Butane Gas Company and others. From a decree overruling a demurrer to the bill as amended, respondents appeal.
Affirmed.
The bill makes parties respondent thereto Alabama Butane Gas Company, a corporation, American Oil Company, a corporation, Louis Darring and Eva Darring, and as amended is in substance as follows:
"2. That heretofore, on, to-wit, the 30th day of October, 1930, complainant Tarrant Land Company leased and let in writing to one Charles Darring for the period of, to-wit: ten years, to the first day of December, 1940, the following described real property and premises, to-wit: * * *
"A copy of said lease is hereto attached as 'Exhibit A' and made a part hereof to the same extent and as fully as if herein set out in full; that upon execution of said lease Charles Darring entered upon said premises and took possession thereof;
"3. That in and by the terms of said lease and as a part of the consideration therefor it was provided, — 'That the lessee shall not under lease, sub-let or sub rent said premises or any part thereof or transfer or assign within lease without the written consent of lessor or his agents. Each transfer and assignment, and each sub-letting or renting of said premises unless the written consent of the lessor or his agents be first obtained shall be null and void, at the option of the lessor or his agent.', and orator avers that neither it nor its agents has given its consent to any under-lease, sub-let or sub rent of said premises or any part thereof nor to any transfer or assignment of said lease and orator elects to treat any attempted under lease, sub-letting or sub-renting of said premises or any attempted transfer or assignment of said lease as null and void.
"4a. Complainant is informed and believes and upon such information and belief avers that said Charles Darring and the respondents used said premises and operated thereon the business of wholesale and retail sale of butane gas. Orator avers that said Charles Darring never surrendered possession of said premises to complainant; that said Charles Darring died intestate on, to-wit: the 5th day of March, 1942, and there has been no administration of his estate; that the respondents are still in possession of said premises.
"5a. Orator further avers that on October 23, 1934, a certificate of incorporation was filed in the Probate Office of Jefferson County, Alabama, by Charles Darring, Louis Darring and Eva Darring incorporating American Oil Company, the said Louis Darring being the brother and Eva Darring the sister of Charles Darring. In said certificate Charles Darring is designated as President, Louis Darring, Secretary and Treasurer and Eva Darring Director. Orator is informed and believes that on such information and belief avers that the individuals who are designated as officers and directors of said corporation were in the active charge of the business of said corporation.
"6a. Orator further avers that on August 4, 1938, a certificate of incorporation was filed in the Probate Office of Jefferson County, Alabama, incorporating Alabama Butane Gas Company, by Charles Darring, A. G. Harding and Dr. John L. Endsley in which certificate Charles Darring is designated as President, A. G. Harding, Vice President and John L. Endsley as Secretary and Treasurer. Orator is informed and believes and on such information and belief avers that said Alabama Butane Gas Company, a corporation, was managed and controlled by Charles Darring, Eva Darring and Louis Darring and operated a butane gas business on said premises.
"7a. Orator further avers that it is informed and believes and upon such information and belief orator avers the fact to be that at all times during the term of said lease Charles Darring, Eva Darring and Louis Darring have been in control of the business operated on said premises under said lease; that they have been the dominant persons in charge of the business on said premises; that the said corporations were family owned corporations, and were merely simulations for the purpose of operating said business on said premises.
"8. Orator further avers that in any by the terms of said lease and as a part of the consideration therefor it is provided, 'That if the lessee shall continue in possession of any part of said premises after the expiration of the aforesaid term, without the written consent of lessor or his agents, then this lease, at the option of the lessor or his agents shall continue in full force until the next September Thirtieth with all conditions, covenants and terms herein set forth except the rental of said premises shall be double the amount herein fixed.'
"9. That the rental contracted to be paid by said Charles Darring for the tenth year was Seventy ($70.00) dollars per month and orator admits payment of rent for said premises to December 1st, 1940; that no rental has been paid for said premises since December 1st, 1940, and all rents subsequently accruing are in default and unpaid;
"10. That said lease contained the further agreement in words and figures as follows: 'It is understood and agreed as a part of the consideration for this lease that in the event of default by the lessee in the payment of the rents herein reserved and provided to be paid for a period of six consecutive months during the term of the lease, that all of the buildings and improvements of every kind and character erected on said premises shall revert to and become the property of the lessor and thereafter the lessee shall have no right, title, interest or claim thereon.'
"11a. Orator avers that during the period of tenancy of said premises said Charles Darring and the respondents have erected on said premises a large tank for the storing of Butane gas with pipes attached thereto, said tank being upon substantial pillars, and said tank so attached to said pipes, largely placed underground, that a substantial building has been erected on said premises, containing foundations to which are affixed machinery, pumps and motors for the operation of a butane gas business; that there has been erected a gasoline filling station on said premises with a large tank buried underground with gasoline pump attached and that all of said improvements were erected by the said Charles Darring and the respondents.
"12a. That in the conduct and operation of said butane gas business or businesses defendants have owned tank trucks which were brought on said premises for the hauling of butane gas to customers, which said trucks have enjoyed the use and protection of said premises; also various items of personal property, furniture and equipment were brought on the premises by defendants and have enjoyed the use and protection of said premises.
"13. That in said lease lessee further agreed to pay the lessor or his agents a reasonable attorney's fee in the event of the employment of an attorney to collect any rents, damages or amounts that may become due by lessee under said contract or to file and prosecute a suit against lessee or one holding under the lease, or for unlawfully withholding possession of said premises.
"Wherefore, the premises considered: Complainant prays:
"(a) That process be issued as provided by law to the said Alabama Butane Gas Company, a corporation, American Oil Company, a corporation, Louis Darring, Eva Darring, making them and each of them parties respondent in this cause and requiring each of them to plead, answer or demur within the time required by law or upon their failure to do so, to suffer a decree pro confesso against them.
"(b) That an Administrator Ad Litem of the Estate of Charles Darring, deceased, be appointed by this Honorable Court; that such administrator Ad Litem be made a party respondent to this bill of complaint by proper service and that he be required to plead, answer or demur to this bill of complaint within the time required by law or to suffer a decree pro confesso against him in the premises.
"(c) That a decree be entered in this cause ordering the Register to hold a reference and to ascertain and report:
"1. The amount due complainant as rent for said premises, with interest thereon.
"2. What is a reasonable amount to be paid complainant for his Solicitor's fees for his services in filing this bill of complaint and prosecuting this suit to a conclusion.
"(d) That upon coming in of the Register's report a decree be entered confirming the same.
"(e) That upon final hearing of this cause a decree final be entered herein decreeing that complainant have absolute title in and to all the buildings and improvements of every kind and character erected on the said premises and specifically describing the same; decreeing the amount due complainant for rent, plus interest and a reasonable amount as Solicitor's fees for services, rendered in this cause and giving complainant a judgment against the estate of Charles Darring, deceased, for said amount and a judgment against each of the other said respondents, namely: Alabama Butane Gas Company, a corporation, American Oil Company, a corporation, Louis Darring, Eva Darring, to the extent that the proof may show each of them respectively, to be liable, with a lien upon said tank trucks and other items of personal property furniture and equipment that have enjoyed the use and protection of said premises to the extent provided by law in such cases and specifically describing said items on which such lien is given and ordering that the Register sell the same for satisfaction of the decree in accordance with the law in such cases and the rules of this Honorable Court.
"(f) That Complainant be granted a decree of ouster against each of the respondents and that possession of the said premises be restored to complainant by decree of this Honorable Court.
"If Complainant is mistaken as to the specific relief herein prayed for, then complainants prays for such further other and different relief as in equity and good conscience complainant may be entitled to under the pleadings and proof and complainant offers to do equity and will ever pray."
Horace C. Wilkinson, of Birmingham, for appellants.
When the tenant retains even a reversionary interest, there is at most a mere sublease, and no privity exists between the landlord and such subleasee, nor can the landlord sue such sublessee. Pan American Petroleum Corp. v. Parker, 230 Ala. 178, 160 So. 220; Simmons v. Fielder, 46 Ala. 304. Absent any averment of insolvency, equity will not take jurisdiction to enforce a landlord's lien. De Soto Falls Dev. Co. v. Libby, 231 Ala. 507, 165 So. 763. Equity will not take jurisdiction to enforce a penalty under the facts alleged in the amended Bill. Montana v. Alabama Fishermen's, etc., Ass'n, 226 Ala. 303, 146 So. 805. A stipulation in a lease that the premises should not be relet or the lease assigned without the consent of the lessor is valid and enforceable by the lessor. City Garage Sales Co. v. Ballenger, 214 Ala. 516, 108 So. 257. The lease having prohibited a subletting of the premises and prohibited an assignment of the lease, the bill as amended negativing such consent and affirmatively electing to treat any attempted subletting or assignment as void, effectually prevents appellee occupying, as to these appellants, any relation as landlord, prevents the attachment of any lien upon their property, or creating any estoppel against either of them. The relation of landlord and tenant can be created only by a contract, expressed or implied. Simmons v. Fielder, supra; Crim v. Nelms, 78 Ala. 604; Bailey's Adm'r v. Campbell, 82 Ala. 342, 2 So. 646; Metzger v. Brincat, 154 Ala. 397, 45 So. 633; Bush v. Hill Gro. Co., 212 Ala. 189, 101 So. 884; Wachter v. Leeth National Bank, 240 Ala. 604, 200 So. 422; Hamilton v. House, 6 Ala. App. 86, 60 So. 429. Only when a tenant transfers his entire estate, retaining no reversionary interest whatever, is there an assignment of the lease. Johnson v. Moxley, 216 Ala. 466, 113 So. 656. Neither Louis nor Eva Darring nor Alabama Butane Gas Company nor American Oil Company would be liable to appellee except and unless the lease of Charles Darring had been assigned to him, her or it. Metzger v. Brincat, supra; Bush v. Hill Grocery Co., supra. Even a statute providing for double rent is construed to be highly penal in its nature, to be strictly construed, and applicable only to annual rent, not monthly rent. Speer v. Lancaster-Johnson Lumber Co., 214 Ala. 688, 108 So. 746. These appellants getting lawful possession, either exclusively or jointly, with Charles Darring, the lessee, are not liable for use and occupation to appellee. Hamilton v. House, 6 Ala. App. 86, 60 So. 429. By statute a landlord of land has a lien upon, but only upon the crop grown on rented land. Code, Title 31, Sec. 15; Montana v. Alabama Fishermen's, etc., Ass'n, supra. By statute a landlord of a building has a lien upon, but only upon, the goods, furniture and effects of the tenant and subtenant. Code, Title 31, § 29. But even here the landlord has no lien on the property of a subtenant beyond the term for which he bound himself. Samuel Gans Co. v. Tyson, 170 Ala. 513, 54 So. 237. The Bill as amended not averring any community of interest among appellants, but at most that some one or more is liable for his, her, or its obligation, neither being liable for the obligation of the other, there is a misjoinder of each appellant. Wharton v. First Nat'l Company, 230 Ala. 421, 161 So. 825. The lease provision for the reversion to appellee of the buildings and improvements does not include the storage tanks, pipes, etc. (articles in their nature chattels) nor authorize appellee to prevent the removal thereof. Walker v. Tillis, 188 Ala. 313, 66 So. 54, L.R.A. 1915A, 654. One who lends a tank to the owner of a garage to aid in the handling of gasoline may recover it from the purchaser of the real estate with notice, although it is buried in the earth to guard against injury and to decrease the fire hazard. Standard Oil Co. v. Dolgin, 95 Vt. 414, 115 A. 235, 17 A.L.R. 1218; 22 Am.Jur. 722, § 9. A corporation is a distinct entity, separate from its stockholders, and will be so treated except when the separate entity is used to defeat public convenience, justify wrong, protect fraud or defend crime, neither of which is here involved. Fletcher Corp. 57, §§ 42, 45. The original lease having expired December 1, 1940, the lessee, Charles Darring, continuing in possession thereafter, the lease was, by its own terms, extended at appellee's option for a term ending September 30, 1941, but no further implied extension, then or later, resulted from lessee holding over after September 30, 1941, since the provision for renewal is completely performed by one renewal. Indian Head Mills v. Hamilton, 212 Ala. 97, 101 So. 747.
J. K. Brockman and Thos. Seay, both of Birmingham, for appellee.
Equity has jurisdiction to enforce liens of all kinds. Code 1940, Tit. 33, § 1; Griel Bros. Co. v. Montgomery, 182 Ala. 291, 62 So. 692, Ann.Cas. 1915D, 738; Montana v. Alabama Fishermen's, etc., Ass'n, 226 Ala. 303, 146 So. 805; Harden v. Wood Lbr. Co., 235 Ala. 310, 178 So. 540; Ex parte Deaton, 243 Ala. 154, 8 So.2d 819; Leader v. Romano, 208 Ala. 635, 95 So. 7. When equity takes jurisdiction, it does so for all purposes and renders complete justice. Lavretta v. First National Bank, 235 Ala. 104, 178 So. 3; Ex parte Tennessee Valley Bank, 231 Ala. 545, 166 So. 1; Fife v. Pioneer Lbr. Co., 237 Ala. 92, 185 So. 759. Lessee and those holding under him are charged with notice of contents of lease and are bound by all conditions of same. Brock v. Desmond Co., 154 Ala. 634, 45 So. 665, 129 Am.St.Rep. 71; Cesar v. Virgin, 207 Ala. 148, 92 So. 406, 24 A.L.R. 715; White v. First National Bank, 236 Ala. 589, 183 So. 875; Jebeles C. C. Co. v. O'Byrne, 7 Ala. App. 213, 60 So. 984. A person let into possession by tenant without assignment is a licensee and not an assignee. Where premises are leased to an individual and a corporation is let into possession there is a presumption that the corporation is a licensee rather than an assignee. Samuel Gans Co. v. Tyson, 170 Ala. 513, 54 So. 237; Galligan v. P. S. M. Co., 116 Misc. 754, 191 N.Y.S. 523. A licensee of tenant taking possession of and using leased premises for purpose for which it was leased is liable to landlord for use and occupancy. Code, Tit. 31, § 46. Landlord has lien for use and occupation of leased premises including goods, furniture and effects which were brought on or had protection of premises.
The appeal is from a decree overruling appellant's demurrer to the bill as amended.
The principal grounds of demurrer are whether the bill is multifarious, whether there is a misjoinder of parties, and whether the pleading shows a complete and adequate remedy at law.
It was declared that not only must each respondent have a community of interest in law and in fact in the matter before the court, but also each party must have an interest in the suit of the others. Do the facts averred offend this Rule? Wharton et al. v. First Nat'l Company of Birmingham, 230 Ala. 421, 161 So. 825; Altman v. Barrett, 234 Ala. 234, 237, 174 So. 293. In Little v. Gavin, Special Administrator, ante, p. 156, 12 So.2d 549, the enlarged rule under the statute [Code 1940, T. 7, Appendix, p. 1055, Rule 15] is applied, and see Van Antwerp v. Van Antwerp, 242 Ala. 92, 5 So.2d 73; Littleton v. Littleton, 238 Ala. 40, 188 So. 902.
The time limitation of the original lease having expired December 1, 1940, the lessee Charles Darring continuing in possession thereafter, the lease was, by its own terms, extended at appellee's option for a term ending September 30, 1941, but no further implied extension then or later resulted from lessee holding over after September 30, 1941, since the provision for renewal is completely performed by one renewal. Indian Head Mills v. Hamilton, 212 Ala. 97, 101 So. 747; Drake v. Board of Education, 208 Mo. 540, 106 S.W. 650, 14 L.R.A., N.S., 829, 123 Am.St.Rep. 448, 13 Ann.Cas. 1002. The terms for extension and surrender of possession specifically stated in the lease are as follows: "The Lessee further agrees that, upon the termination or expiration of the within lease, to surrender quiet and peaceable possession of said premises in the like good order as at the commencement of said term, and notice so to do is hereby waived. It is further understood and agreed that if the Lessee shall continue in possession of any part of said premises after the expiration of the aforesaid term without the written consent of Lessor or his agents, then this lease, at the option of the Lessor or his agents, shall continue in force until the next succeeding September thirtieth, with all conditions, covenants, and terms herein set forth except that the rental of said premises shall be DOUBLE THE AMOUNT herein fixed."
It is established that equity has jurisdiction to enforce liens of all kinds, there being no conflict of jurisdictions acquired by other courts, and not being limited by statute as to such lien for its enforcement. Code 1940, T. 33, § 1; Greil Bros. Co. v. City of Montgomery, 182 Ala. 291, 62 So. 692, 693, Ann. Cases, 1915D, p. 738; Montana v. Alabama F. H. Ass'n, 226 Ala. 303, 146 So. 805. It is held that lessees and those holding under them are charged with notice of the terms of the lease and are bound by its conditions. Brock v. Desmond Company, 154 Ala. 634, 45 So. 665, 129 Am.St.Rep. 71; Cesar v. Virgin, 207 Ala. 148, 92 So. 406, 24 A.L.R. 715; McAdams on Landlord Tenant, p. 816, § 248. A condition of the lease is that its occupation was for use as "oil company, filling station and not otherwise" for the term of ten years.
"In Cesar v. Virgin, 1921, 207 Ala. 148, 92 So. 406, 24 A.L.R. 715, where a lease of premises had been granted for mercantile purposes only, the lessor, upon violation of any of the conditions of the lease, to have the right at her option to re-enter and annul the lease, and a decree denying an injunction to restrain forfeiture of the lease and a dispossession action was affirmed, the court said: 'A grant of premises for mercantile purposes only is a grant upon condition; and while it is well settled that the happening of the contingency specified in such a contract does not of itself terminate the lease, in the absence of a stipulation to that precise effect, a breach does give the lessor a waivable option to cancel.'
"The courts in many cases, while not defining as a condition subsequent a stipulation in a lease that it shall cease and be void in the event of the default of the lessee, or that on default by him he shall surrender possession, have held that the terminating of such a lease because of default by the lessee was optional with the lessor. * * *." 118 A.L.R. 295, 296.
In Harden et al. v. Wood Lumber Co., 235 Ala. 310, 178 So. 540, it is said:
"Where improvement is made on land by lessee not prohibited by lease, mechanic's lien does not extend to the freehold, but only to the improvement and the leasehold. Code 1923, § 8834 [Code 1940, Tit. 33, § 39].
"A court of law cannot enforce liens except as expressly authorized by law.
"A court of equity could always enforce any sort of lien where there was no other remedy, and sometimes when there was, even before passage of statute conferring on equity power to enforce all liens though they are created by statute and statute provides a remedy. Code 1923, § 8935 [Code 1940, Tit. 33, § 1]."
See, also, Ex parte Deaton et al., 243 Ala. 154, 8 So.2d 819; Leader v. Romano, 208 Ala. 635, 95 So. 7; Catanzano v. Hydinger, 233 Ala. 116, 170 So. 214; Roberts v. Lindsey, 242 Ala. 522, 7 So.2d 82.
It is further established that having duly taken jurisdiction the court retains it for all purposes to determine all rights, to render full and complete justice to all parties before the court, whether this right be legal or equitable. Tecumseh Iron Co. v. Camp, 93 Ala. 572, 573, 9 So. 343; Lavretta v. First Nat. Bank of Mobile, 235 Ala. 104, 109, 178 So. 3; Hardin v. Wood Lumber Co., supra; Fife v. Pioneer Lumber Co., 237 Ala. 92, 183 So. 759.
It is declared that one let into possession by a lessee is presumed to be a licensee rather than a mere assignee [Samuel Gans Co. v. Tyson, 170 Ala. 513, 54 So. 237], and under Code 1940, T. 31, § 46, a licensee of tenant taking possession of and using the leased premises for the purpose for which the land was leased is liable to the landlord for use and occupancy. It is provided in the instant lease that the lessor shall have a lien for rent "upon all goods, furniture and effects and fixtures of the lessee on said premises, or to be placed thereon during said term, for the rent for the term hereof and for any other amount owing or accruing hereunder, in addition to the statutory landlord's lien."
Code 1940, T. 31, § 46, as interpreted by decision, requires that:
"To support the action under this section for the use and occupation of land, the defendant must either have gone into possession of the land unlawfully, thereby subjecting himself to such liability under the fourth subsection of this section, or he must have been a party to a contract, express or implied, creating between him and the one seeking to hold him so liable the technical relation of landlord and tenant, or a relation importing like rights and duties. Hamilton v. House, 6 Ala. App. 86, 89, 60 So. 429; Crabtree v. Street, 201 Ala. 630, 79 So. 192; Johnson v. Moxley, 22 Ala. App. 1, 113 So. 651; First Nat. Bank v. Welch, 24 Ala. App. 150, 132 So. 43.
"In all cases brought under subsections 1, 2 and 3 of this section, 'there must exist a relation between the parties founded on an express or implied contract which estops the defendant from drawing the title of the owner into the controversy.' Burgess v. American Mtg. Co., 115 Ala. 468, 22 So. 282; Mooty v. Doyle, 1 Ala. App. 577, 55 So. 436; First Nat. Bank v. Welch, 222 Ala. 144, 132 So. 44."
The bill as amended has several aspects, viz.: (1) To enforce a lien for rent; (2) for discovery and accounting; (3) for determination of the ownership of liens on fixtures placed upon the rented land, if any; (4) to determine whether such fixtures may or may not be removed from the land after termination of tenancy, the rent lien being discharged; and for possession of the leased premises.
Under the jurisdiction and powers of a court of equity to render a decree that accords complete justice to all parties at interest, and under the several aspects of the bill as amended, a complete and adequate remedy is afforded in equity. The bill avers an original lease to Darring in writing, embodying the stipulations of the parties for the time indicated, and for the extension. It avers that there was default in the fulfillment of said terms; seeks to discover who is in possession of the premises; and what and by whom certain material, definite or necessary improvements have been made or erected on the premises pertinent to the oil or gas distribution conducted thereon. The bill seeks to ascertain who has had the use and occupancy thereof during the term of the lease under the right of extension and subsequently thereto, and what business is there conducted and what improvements have been placed on the land and the nature thereof; seeks a decision of the question as to who is liable for the rent, and for use and occupancy of the premises; and in what amounts. Hence the discovery sought.
It is the general rule that the averments of a bill to warrant relief must be complete and on admissions or on a decree pro confesso the court may award the relief prayed. McDonald v. Mobile Life Ins. Co., 56 Ala. 468, 470. The rule has been since adhered to in this court, touching bills for relief. Majors v. Killian, 230 Ala. 531, 162 So. 289; Southern R. Co. v. Curry, 239 Ala. 263, 194 So. 523; Eutaw I. W. P. Co. v. Town of Eutaw, 202 Ala. 143, 79 So. 609; Frederick v. Hartley, 202 Ala. 43, 79 So. 381.
Here the relief prayed is for the enforcement of a lien or the right to compensation for use and occupancy. The bill is necessary for a discovery to that end and for an accounting in the enforcement of such lien. However, the ascertainment of the nature and extent of the lien, the character of improvements or fixtures placed upon the land by the tenant or subtenant, that may or may not be subject to the landlord's lien, can be known only on discovery. This shows that there was not a complete or adequate remedy at law for the enforcement of such lien. The case of Dudley v. Whatley, ante, p. 508, 14 So.2d 141 affords analogy; Fowler v. Mackentepe, 233 Ala. 458, 172 So. 266.
Bills for "discovery" and "accounting" cannot be judged by the same strict rule of averment as bills merely for relief on the full facts that are alleged on demurrer. The instant bill being for relief and discovery, the rule that obtains on demurrer stated by Sims has long prevailed and is to be applied here. It is that if the plaintiff stated a cause in his bill which would entitle him to equitable relief against the defendant, it would be unjust to deny to the plaintiff any amount of discovery from the defendant which would enable him to establish his case and to enforce his lien in his suit. Taking the statement of facts as alleged in the bill to be true, if plaintiff is not entitled to any particular relief prayed, the bill would be subject to demurrer on that ground. Daniell Ch. Pr. § 604 and § 617; Sims' Ch. Pr. §§ 425-428; 30 C.J.S., Equity, §§ 286 et seq., and note; 27 C.J.S., Discovery, § 15, p. 27.
This is the rule on demurrer as applied to a bill for relief and discovery. Such is the bill before us for the enforcement of a lien for rent of lands in a city on which improvements have been erected by the tenant or subtenant with the knowledge of the landlord.
It follows that the decree of the circuit court is without error and is affirmed.
Affirmed.
GARDNER, C. J., and BROWN and LIVINGSTON, JJ., concur.
On Rehearing.
The equitable right of the complainant is to enforce a lien for rent. This is the main basis of the equitable right asserted by the amended bill. The other features of the bill, which are set out in the opinion, are not sufficient to support the equity of the bill taken alone. And, therefore, it is necessary that the bill be sufficient to enforce a lien for rent. There is no lien for rent of a vacant lot provided by statute except on crops grown on said lot. The lot here in question was vacant when rented and no lien is sought upon crops grown on it and therefore it will not stand by virtue of that statute.
In the pleading and in brief attention is called to the feature of the contract as shown by the exhibit to the bill whereby the lessor shall have a lien upon all goods, chattels, effects and fixtures of the lessee on said premises or to be placed thereon during said term and the valuable improvements placed thereon. That is a sufficient provision by contract for a conventional lien [36 C.J. p. 483, note 64; Lewin v. Telluride Iron Works Co. et al., 8 Cir., 272 F. 590; 32 Am.Juris. §§ 584, 593, 596]; and the equity of the bill as amended is properly sustained against the lessee and his estate for the enforcement of that contract. Code 1940, Tit. 33, § 1. And all persons claiming interest in the subject of the lien are necessary parties. McLendon v. Truckee Land Co., 216 Ala. 586, 114 So. 3.
In response to the application for rehearing, we advert to that feature of the contract which is sufficient for the establishment of the lien which a court of equity will enforce. Code 1923, §§ 8820, 8829, 8935; Code 1940, T. 31, §§ 46(3), 12; Code 1940, T. 33, § 1. The assignee has the like rights against his assignee under the Code. Code 1923, §§ 8827, 8828, Code 1940, Tit. 31, §§ 10, 11. And the decision in Emanuel v. Underwood Coal Supply Co., ante, p. 436, 14 So.2d 151, dealing with a materialman's lien, is not to the contrary.
We likewise call attention to Section 7-A of the bill as amended to the effect that Charles Darring, Eva Darring and Louis Darring have been the dominant persons in charge of the business on said premises; that said corporations were family owned corporations and were merely simulations for the purpose of operating said business on said premises. Such allegations make the defendants Darring proper parties, standing as they do in the shoes of Charles Darring (the lessee), even if the defendants and the corporations in question were not mere simulations, as is alleged. If they erected these structures indicated in or on the lot by virtue of the rights which Charles Darring acquired under the lease exhibited, this complainant will have a right to enforce the lien created by said contract. The other defendants would be in the same status that the original Darring was, whether they are mere fictitious corporations or not. 36 C.J. p. 483, note 64.
If we eliminate all reference to a discovery and rest the amended bill as standing squarely upon the equitable right to enforce the contract lien, it is sufficient.
The application for rehearing is overruled.
GARDNER, C. J., and BROWN and LIVINGSTON, JJ., concur.