Complainant's right to maintain this bill in equity depends upon his establishment of a debt for which he has a statutory mechanic's and materialman's lien, or upon his right, under the contract exhibited, to have an equitable mortgage declared as prayed.
Our statute (Code, § 4758) requires a lien claimant to file in the probate office a sworn statement "containing a just and true *Page 651 account of the demand secured by the lien, after all the just credits have been given"; and our decisions have recognized the principle that an intentional misstatement of the account in excess of what is just and true, made for the purpose of increasing the amount of the lien, is a fraud in law, and will vitiate the entire lien. Lane Bodley Co. v. Jones, 79 Ala. 156,163; Jefferson, etc., Co. v. Peebles, 195 Ala. 608, 613,71 So. 413.
In Ala. Ga. Lbr. Co. v. Tisdale, 139 Ala. 250, 257,36 So. 618, there is to be found a query whether the present statute was intended to prevent the destruction of the lien, as held in Lane Bodley Co. v. Jones, supra, under the statute then in force, as to which no opinion was expressed. We are clearly of the opinion, however, that the principle announced in the older case has been in no wise affected by the provision of the present statute that "no error in the amount of the demand, * * *, shall affect the lien"; for this means merely an inadvertent or honest mistake, and not a willfully false claim.
Of course, on general principles, a willful intention to claim for an item known to have not been furnished, or for an amount known to be in excess of what is justly due, will not be presumed, and the burden is on the debtor to show the evil intent. Ala. Ga. Lbr. Co. v. Tisdale, supra, 139 Ala. 256,36 So. 618.
From a very careful examination of the testimony, which is quite voluminous, we are forced to conclude that the sworn statement of the account filed by complainant contains a number of overcharges, and we cannot escape the conviction that, as to some of these items, the overcharges were willfully made with the knowledge that they were not just and true. We refer especially to the items of bricklaying, framing and sheathing material, and carpenter's work, the labor of the plumber, Calahan, and the charge for repainting the bath room. An analysis of the testimony leading to this conclusion would unprofitably extend this opinion, and a summary statement must suffice. These overcharges, willfully made, must be held to work a vitiation of the lien. This seems to have been the view taken by the trial court; and, since the witnesses were heard by the judge viva voce, and there was ample evidence, notwithstanding its conflicting tendencies, to support the conclusion of excessive charges willfully made, we would not disturb the finding even if we were inclined to take a different view.
That conclusion is of course fatal to complainant's right to any relief in a court of equity, on the principle of unclean hands, and must result in a denial not only of his assertion of a lien, but also of his prayer for specific enforcement of the stipulation for mortgage security for any balance due. This requires the dismissal of the bill of complaint, without regard to the existence vel non of any balance due to complainant, as to which he will be remitted to his action at law, and the dismissal will be without prejudice as to such an action.
To that extent only the decree of the circuit court in equity will be modified, and as thus modified it will be affirmed.
Modified and affirmed at appellant's cost.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.