On Rehearing
HARWOOD, Justice.While no application for rehearing was filed in this case within fifteen days of the rendition of the judgment on appeal, the case was placed on rehearing by this court for further consideration of the questions involved. This action was taken within the special term of this court, the term during which the judgment and opinion was rendered and published.
Amicus curiae briefs have been received from parties questioning the soundness of our opinion, and from parties supporting and approving the same. These briefs and the authorities cited therein have received our attention, and the case has again received our careful consideration.
Amicus curiae counsel questioning the opinion, and who represent materialmen, have relied mainly on four cases which they contend should control the question presented, and doctrines of which cases would necessarily lead to a conclusion contrary to that reached by us.
These cases are Baker Sand and Gravel Co. v. Rogers Plumbing and Heating Co., 228 Ala. 612, 154 So. 591; Protective Life Insurance Co. v. Holland Furnace Co., 234 Ala. 38, 173 So. 379; Lary v. Jones, 237 Ala. 575, 187 So. 714, and Polakow v. Weldon, 242 Ala. 505, 7 So.2d 85.
While the opinion in Baker Sand and Gravel, supra, was published in March 1934, counsel for the materialmen state in brief that: “It is true this case arose prior to the 1933 amendment.” The opinion itself makes clear that it was based upon an analysis of Section 8833, Code of Alabama 1923. However, counsel argues that had the court felt that the law had been substantially changed by the 1933 amendment, such change would have been noted. Such speculation by counsel cannot prevail in ■light of the fact that an interpretation of the 1933 amendment was not before the court in Baker Sand and Gravel, supra, but only pre-1933 statute codified as Section 8833 of the Code of 1923. Our present decision of necessity had to be based upon an interpretation of the 1933 amendment.
The original record in Protective Life Insurance Co. v. Holland Furnace Co., supra, which was decided in 1937, discloses that the mortgage involved was executed and recorded on 20 April 1925. The mechanics and materialman’s lien involved was recorded in the Probate Office of Jefferson County on 23 February 1932, and the bill to declare and enforce the lien was filed 23 February 1932. Therefore this case was governed by Section 8833, Code of Alabama 1923, as it read prior to its amendment in 1933.
Lary v. Jones, supra, was decided in 1939. The opinion discloses that a bill was filed by a materialman to declare and enforce his lien, and a decree was rendered in favor of the materialman in 1931. A prior mortgagee was not made a party to this bill.
The mortgagee thereafter foreclosed his mortgage in May 1932, and purchased the property at the foreclosure sale, and took possession of the mortgaged property. In 1937 the materialman filed a bill to determine the priorities between his lien and the mortgagee’s lien as to buildings erected on the lot. The court overruled a demurrer to the bill and the respondent-mortgagee appealed.
Again, the rights of the parties having been fixed prior to 1933, such rights were not to be determined under or affected by the 1933 amendment. Further, the court stated that the error mainly insisted upon was the bar of the statute of limitations, *456i. e., whether the latter action against the prior mortgagee was barred by the six months period fixed by Section 8855, Code of Alabama 1923, for proceedings to adjudicate and enforce a materialman’s lien as against the owner. In the posture of the case the court had no occasion to consider the effect of the 1933 amendment.
Polalcow v. Waldon, supra, involved the action of the Chancellor in overruling a demurrer to a bill to enforce a materialman’s lien. This court reversed on the grounds that the demurrer was well taken in that the bill was indefinite and uncertain, and also that it failed to aver when the work on the building was commenced. An interpretation of the 1933 amendment was not presented in proceedings.
We find nothing in the above mentioned cases which should influence a conclusion different from that reached in our original opinion. The question squarely presented in this appeal involved an interpretation of the 1933 amendment. Such question has not previously been before this’ court insofar as our research discloses. Nor has counsel furnished us with any case which can be deemed influential.
Counsel for the materialmen assert in brief:
“The construction lender can protect himself by taking affidavits from the builder that all bills have been paid, and by advancing the draws on the construction loan jointly to the contractor and his unpaid laborers and materialmen.”
Adherence to this suggestion would impose an intolerable, if not impossible, burden on the lender. Assuming an effort be made by the lender to canvass every materialman and laborer in the area, a task hardly feasible as a practical matter, such a canvass would not affect those materialmen and laborers beyond the area of a construction job who may have furnished work or materials to the construction job. Nor do we see how an affidavit from the builder that all bills have been paid, could foreclose unpaid laborers or materialmen from asserting their claims.
On the other hand, a materialman can easily determine the existence, or nonexistence, of a mortgage on the land in question by the simple expedient of an examination of the mortgage records in the office of the Probate Judge.
As stated by Mr. Scholl in his article, which has been referred to in our original opinion:
“The function performed by the construction mortgage lender as illustrated by this example is obviously indispensable, for in this way the owner secures .the required short term financing which neither the builder nor the owner is normally able to provide and which the permanent mortgage lender is unwilling to furnish. The lender who makes the construction loan thus performs probably the single most important service contributed in the course of the typical building project.
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“ * * * The point is not that the materialman and the contractor should be denied their protection against the owner. But they should not have it at the expense of the lender without whose money there would be no job.”
We are yet of the view that our original opinion correctly interpreted the effect of the 1933 amendment to Section 8833, Code of Alabama 1923, (Act No. 64, Acts of Alabama, Ex.Sess.1933, p. 54), which may be found as Section 38, Title 33, Code of Alabama 1940.
Opinion extended; rehearing denied
MERRILL, BLOODWORTH, MADDOX and McCALL, JJ., concur.