#### J. G. TEDDER v. WILMINGTON & WELDON R. R. CO. and W. J. SIKES.

(Decided April 4, 1899).

Laborer s Lien — Common Law and Statute.

1. At common law, continued possession is necessary to the existence of the lien; when possession is voluntarily surrendered the lien is gone.

2. So far the Legislature has provided a lien only when the service or labor is for the betterment of the property on which it is bestowed, leaving the laborer in all other cases to secure himself, as at common law.

This is a Civil ActioN, wbicb was tried before Adams, J., at August Term, 1898, of tbe Superior Court of Columbus County. Tbe action began before a Justice of tbe Peace, and was carried up to tbe Superior Court by an appeal.

Tbe parties agreed upon and submitted tbe following facts to tbe Court for its judgment:

That during tbe months of August, September and October, in tbe year 1897, tbe plaintiff, J. Gr. Tedder, at tbe request of tbe defendant W. J. Sikes bauled and delivered, with mules and wagons, along tbe rigbt-of-way of tbe W. 0. and A. Railroad, between tbe White Marsh water tank and Pine Log, in said county, 4,483 cross-ties, and.that tbe defendant W. J. Sikes is now due tbe plaintiff, J. G-. Tedder, for tbe labor performed by him in hauling and delivering said cross-ties as aforesaid, tbe sum of $140.85. That tbe only work and labor done by tbe said J. G-. Tedder on said cross-ties was tbe hauling of tbe same from tbe swamp, where they bad been cut, and delivering them along and placing them in piles on tbe rigbt-of-way of tbe said railroad company. That tbe de*343fendant W. J. Sites alone contracted and agreed with tbe plaintiff, Tedder, before said cross-ties were bauled to pay him said amount ($140.85) upon the same being hauled and delivered on said right-of-way, and that the plaintiff, J. Gr. Ted-der, did haul and deliver said cross-ties as agreed upon. That on the 11th day of December, 1897, the plaintiff, J. Gr. Ted-der, filed with H. C. Moffit, a Justice of the Peace for said county, a lien on said cross-ties, which were then on said right-of-way, and in piles as plaintiff had delivered and placed them, for the labor performed by him as aforesaid in hauling and delivering the same, and that said lien was filed and recorded in due form of law. That the defendant W. J. Sikes was the owner of said cross-ties when said work and labor was done by the plaintiff Tedder. That the said cross-ties had not been moved from where plaintiff had hauled and piled them up on said right-of-way at the time the summons in this action was served on the defendant. That the defendant W. J. Sikes conveyed and delivered the said cross-ties to one Wade, who sold and delivered the same to the defendant the Wilmington and Weldon Railroad Company for value, and without notice of the plaintiff’s claim; and that the said Sikes sold and delivered the said cross-ties before the filing of said lien on the said 11th day of December, 1897, and that the defendant W. J. Sikes had no interest in the said cross-ties at the time plaintiff filed his said lien. That the plaintiff, Tedder, filed his said lien within twelve months from the completion of his said labor.

The Court, upon consideration, gave judgment for the plaintiff, and defendants excepted and appealed.

Faircloth, C. J.

In August, September and October, 1897, the plaintiff, at the request of the defendant Sikes, hauled from the swamp and delivered on the right-of-way of the railroad, cross-ties, for which service and no other, Sikes *344is due him $140.85. On December 11th, 1897, plaintiff filed and had recorded a lien on said cross-ties. Before December 11, 1897, Sikes sold and delivered said cross-ties to one Wade, who sold and delivered the same to the defendant Railroad without notice of plaintiff’s claim, and Sikes had no interest in the cross-ties when said lien was filed. The Court held that the plaintiff was entitled to recover.

At common law, laborers engaged in cutting, hauling and driving timber had no lien thereon. A lien may be acquired by continued possession. The moment that possession is. voluntarily surrendered the lien is gone. 1 Jones on Liens, section 702. So where a laborer repaired a wagon and surrendered it to the owner before payment, the laborer had no lien. Possession is absolutely necessary to the existence of the lien. McDougald v. Crapon, 95 N. C., 292.

The Constitution, Article XIV, section 4, declares: “The General Assembly shall provide by proper legislation, for giving to mechanics and laborers an adequate lien on the subject matter of their labor.” Accordingly, the Legislature has enacted (The Code, section 1781) that for every building built, rebuilt, repaired or improved, together with the necessary lots on which said building may be situated, etc., shall be subject to a lien for material furnished or for work done on the same. The Code, section 1782, secures a lien for work on crops or farms. The Code, 1783 : “Any mechanic or artisan who shall make, alter or repair any article of personal property at the request of the owner or legal possessor of such property shall have a lien on such property,” etc., and may retain possession until his reasonable charges are paid. If, however, he surrenders possession of the same, he loses his lien. McDougald v. Crapon, supra.

The Code, 1796, provides that servants’ and laborers’ share of the crops for wages by contract shall not be subject to sale *345under execution against their employers or the owners of the land cultivated.

Applying the law as above stated to the facts in the present case the plaintiff has no lien, either at common law or statutory. It seems, so far, that the Legislature has provided a lien only when the service or labor is for the betterment of the property on which the labor is bestowed, leaving the laborer in all other cases to secure himself as at common law.

Error.