In the former argument of respective counsel, the general lien law was treated as of application. Code, § 8832 et seq. And in the mechanic's lien chapter it is expressly declared:
"All local or special laws in conflict with this article are expressly repealed." Section 8862 (4784), Code of 1923.
Such is the legislative intent, specifically declared as to its effect on Acts 1901, p. 581, notwithstanding the saving provisions of Acts 1923, p. 127, § 3, or notwithstanding the general terms of the act adopting the Code, and as affecting section 10, Code of 1907 (section 12, Code of 1923). It is a question of legislative intent for uniform lien laws. State v. Acacia Mut. Life Ass'n, 214 Ala. 628, 108 So. 756; Id.,214 Ala. 631, 108 So. 759; Merchants' Bank v. Sherman, 215 Ala. 370,110 So. 805.
When the bill and exhibit are considered as complainant's pleading, that is challenged by demurrer, the averments thereof are in substantial conformance to the statute.
The case of Martin v. Clark, 154 Ala. 425, 46 So. 232, now cited on rehearing, has no application to the averred facts. It involved inconspicuous repairs to the building purchased after the repairs were made; there was no opportunity on the part of the purchaser to know or discover that such repairs had been made. That bill did not show that the repairs were made before the sale of the property, and expressly stated that:
"It is not averred in the bill when the material was furnished and the work done, though it is alleged that 'said indebtedness accrued on or about the 24th day of July, 1906.' It is not pretended that the City Loan Banking Company, as purchaser, had any notice of the complainant's claim; the contention of the complainant being that he was given a priority under the statute, either with or without notice on the part of the City Loan Banking Company. * * * A purchaser, taking as absolute owner of fee, is clearly not included within either class mentioned in the statute. He is neither lienor, mortgagee, nor incumbrancer, but the absolute owner; and if hepurchases without notice, actual or constructive, the statute gives no priority as against him. To hold otherwise would be to ingraft upon the statute a provision not within its terms." (Italics supplied.)
In the case at bar, new houses are under construction. In such case the recognized principle is that:
"The fact that the work is in progress is notice to all of the rights of the mechanic, and all conveyances made during that time are subject to the mechanic's rights." Rockel on Mechanics' Liens, p. 393, cited in the opinion in this case.
In the Martin Case, the court sought to safeguard that decision, saying:
"If he purchases without notice, actual or constructive, the statute gives no priority as against him."
When a new house is constructed, as indicated in Le Grand v. Hubbard, 216 Ala. 164, 112 So. 826, it is notice to all the world, within the lien period, of the rights of the mechanic and materialman. It is actual and constructive notice to subsequent lienholders and incumbrancers, and affects purchasers for value with such notice.
The construction given our record laws as to property subject to lien removed to another county, or brought into the state and safeguarded for the time within which notice of the lien may be given by a record of the instrument creating the lien (section 6890, Code, and annotations; Finney v. Dryden,214 Ala. 370, 108 So. 13; Malone v. Bedsole, 93 Ala. 43, 9 So. 520; Davis Co. v. Thomas, 154 Ala. 279, 45 So. 897), bears analogy to the application we have given the mechanic's lien law on original hearing. It should be said, however, that the facts of Le Grand v. Hubbard, 211 Ala. 164, 112 So. 826, present the priority of lien between a garnishing creditor of a contractor and materialmen furnishing materials to the contractor for the erection of a building, and that the unpaid balance due was the subject-matter of that suit. However, the materialmen perfected the lien, and the lien of the garnishee as such attached against the debtor and contractor prior to the giving of notice to the owner of the land, required of persons furnishing material, etc., to contractor. It was declared that the priorities of section 8833 of the Code were unaffected by a garnishment lien attaching after the materialmen's lien came into existence, though the process issued before the time of the due perfection of materialmen's lien.
The instant bill contained a general prayer, and that seeking a lien on the lots and each building located thereon. In Martin v. Clarke, 154 Ala. 425, 427, 46 So. 232, the lien was sought upon the house and lot, and the statute construed was section 2724 of the Code of *Page 164 1896, and re-enacted as section 4755 of the Code of 1907, and as section 8833 of the Code of 1923. The crux of that opinion is in the statement that it is not averred "when the material was furnished," that the purchaser had "no notice of complainant's claim," that the "contract [was] for repairs," alleged to have been made "prior to the sale and conveyance," and there was no opportunity for the purchasers to have notice,actual or constructive.
Application for rehearing is overruled.
ANDERSON, C. J., and SOMERVILLE and BROWN, JJ., concur.