18 S.E.2d 61 | Ga. Ct. App. | 1941
Lead Opinion
1. To make good or perfect the materialman's lien specified in the Code, § 67-2001, it is essential, under § 67-2002, not only that there be (1) a substantial compliance by the alleged lienor with his contract and (2) the recording of his claim of lien within three months, but (3) that an action for recovery of the amount of his claim be commenced within twelve months from the time the same became due. Before the rendition of a judgment in favor of the claimant the claimed lien is only inchoate, and the failure of the claimant to perfect his lien as provided by the statute vitiates it, not only as against third persons, but as against himself.
2. A judgment perfecting such a claimed lien of a materialman is within the statute (Code, § 110-1001) providing that a judgment shall become dormant under circumstances therein named.
3. Under the facts shown by the record the court did not err in sustaining the defendant's affidavit of illegality and in dismissing the levy.
On August 7, 1940, the sheriff of Clarke County levied the above execution upon the real estate described in the execution, reciting in the entry of levy as follows: "I have this day levied the within fi. fa. and the judgment upon which the within fi. fa. was issued *332 upon the following described property . . levied on as the property of the defendant in fi. fa., Mrs. Edna B. Short." To this levy the defendant in execution interposed an affidavit of illegality on the ground that the "execution is proceeding illegally because the judgment upon which it is based is dormant and the execution is dormant because no entry of any kind has been made on the execution [except the levy above referred to] since May 15, 1924, and no entry of any kind has been made on the general execution docket since November 23, 1922, and no action of any kind has been taken since the issuance of such execution to keep the same alive or to revive the judgment upon which it was based."
The case was tried before the judge without the intervention of a jury. On February 27, 1941, judgment was rendered sustaining the affidavit of illegality and dismissing the levy. It was recited in the judgment that the court "finds that the execution is proceeding illegally because said execution and the judgment upon which the same is based are now and were at the time of the levy dormant." To this judgment the plaintiffs excepted. They assigned such judgment as error "upon the ground that same was contrary to law and that the execution and judgment of foreclosure of lien was not dormant and . . that the execution, judgment, and decree of the court of foreclosure of plaintiffs in error's materialman's lien is a valid and subsisting judgment and decree, and is not barred by the dormancy of judgments acts, and same should have been ordered to proceed and the affidavit of illegality should have been overruled." The sole question here presented is whether or not a judgment based on the foreclosure of a materialman's lien is exempt from the operation of the dormant judgment acts as codified in part in Code § 110-1001 as follows: "A judgment shall become dormant and shall not be enforced . . 2. Unless entry is made on the execution by an officer authorized to levy and return the same and such entry and the date thereof are entered by the clerk on the general execution docket within seven years after the issuance of the execution and its record; or 3. Unless a bona fide public effort on the part of the plaintiff in execution to enforce the execution in the courts is made at such times and periods that seven *333 years will not elapse between such attempts or between such an attempt and a proper entry." In the present case the levy of the execution was made on August 7, 1940. The judgment on which the execution issued was rendered on November 21, 1922, and the execution was issued on the next day and placed upon the general execution docket of the superior court of the county. So far as appears from the execution there was no levy thereof or other effort to enforce the judgment until the levy of the execution on August 7, 1940.
The plaintiff contends that the judgment sub judice was exempt from the provisions of the Code section because it merely declared and established a lien which was already in existence; that such lien was not first established by the judgment but began to exist when the material was furnished to the owner of the property. The Code, § 67-2301, provides that the lien of a materialman on real estate "shall be foreclosed, when not otherwise provided, as follows: 1. By a compliance with his contract by the person claiming the lien and recording his claim, and the commencement of suit therefor, according to the provisions and requirements of section 67-2002. 2. In declaring for such debt or claim the claimant of the lien shall set forth his lien, and the premises on which he claims it; and if the lien shall be allowed, the verdict shall set it forth, and the judgment and execution be awarded accordingly." The Code, § 67-2001, provides that "all contractors, materialmen, and persons furnishing material for the improvement of real estate . . shall each have a special lien on such real estate," etc. § 67-2002 provides how the lien specified in § 67-2001 may be made good, and states that the liens there mentioned must be "created and declared in accordance with the following provisions, and on failure of any of them the lien shall not be effective, viz.: 1. A substantial compliance by the party claiming the lien with his contract for building, repairing, or improving, or for materials or machinery furnished or set up, as set forth in said section. 2. The recording of his claim of lien within three months after the completion of the work [in the form specified]. . . 3. The commencement of an action for the recovery of the amount of his claim within twelve months from the time the same shall become due." The lien thus provided for in favor of a materialman is not absolute, but must be completed, made good, or *334
perfected in accordance with the provisions of the law above quoted. It is only inchoate or incipient until a judgment finally perfects it. "In 27 Cyc. 110 it is said: `The doing of work or furnishing of materials gives merely an inchoate lien or the right to acquire a lien, and the statute prescribes the steps to be taken to perfect such lien.' Lien laws are of course to be strictly construed, and one who claims a lien must bring himself within the law. Palin v. Cook,
Where a lien is created by contract, for example, as in a mortgage, and where no judgment is necessary to make good or establish such a lien, the statute as to dormant judgments does not apply. Cases dealing with that kind of a lien, such as Butt
v. Maddox,
Judgment affirmed. Sutton and Felton, JJ., concur.
Dissenting Opinion
The levy of this execution was *335 made on August 7, 1940. The judgment on which the execution issued was rendered on November 21, 1922, and the execution was issued on the next day and placed upon the general execution docket of the superior court of the county. So far as appears from the execution there was no levy thereof or other effort to enforce the judgment until the levy of the execution on August 7, 1940.
The Code, § 110-1001, provides: "A judgment shall become dormant and shall not be enforced. . . 2. Unless entry is made on the execution by an officer authorized to levy and return the same and such entry and date thereof are entered by the clerk on the general execution docket within seven years after the issuance of the execution and its record; or 3. Unless a bona fide public effort on the part of the plaintiff in execution to enforce the execution in the courts is made at such times and periods that seven years will not elapse between such attempts or between such an attempt and a proper entry." In the suit in which this judgment was rendered the plaintiffs prayed for a general judgment against the defendant for the purchase price of certain building materials, and also prayed for the establishment of a materialman's lien upon the property of the defendant for the balance due, and the court rendered a judgment in personam against the defendant generally and ordered that the "judgment be and the same is hereby declared, set up and established as a special lien" upon the described real estate of the defendant, being the property for the improvement of which the building materials sold by the plaintiffs to the defendant were used. It is contended by the plaintiffs that the court erred in sustaining the illegality on the ground that the judgment was dormant for the reason that the provisions of the Code, § 110-1001, are not applicable to a judgment rendered in the lien foreclosure proceedings establishing a materialman's lien on the real estate improved.
A judgment rendered upon a suit filed against the owner of certain real estate to recover the purchase price of materials bought by the defendant from the plaintiff for use in the improvement of such real estate, in so far as it may purport to be a general judgment in personam against the defendant, is dormant because of a failure on the part of the plaintiff in execution to make any effort to enforce such judgment for more than seven years after the execution was issued on the judgment.Lindsey v. Porter, *336
It was held as early as Butt v. Maddox,
In Butt v. Maddox, supra, the Supreme Court held that while the dormant judgment act referred to "all judgments," and that the judgments contemplated by it are such only as have, by law, the force and effect of a lien; and that all judgments, in the language of the act, means "all of that class," and that "Judgments of foreclosure, have not by law, a lien." The court further held as follows: "They have not, by law, the element of lien; and as such, in the light of the mischief to be remedied by the act of 1822, are harmless. . . By statute in Georgia, generally, judgments take lien upon all the property of the defendant, from their dates. A debt by promissory note creates no lien; but when judgment is rendered thereon, the judgment is a lien from its date. This lien is a vital element of the judgment which did not belong to the contract; it began with its date, and ran with it, through time indefinite. Now, to limit the range of this lien, to certain intents and purposes, and because of certain mischief growing out of it, the legislature passed the acts of 1822 and `3. But different altogether is the nature of a judgment on the foreclosure of a mortgage. . . The property mortgaged is in the nature of a pledge, upon which a lien attaches in favor of the mortgagee; which lien is discharged by the payment of the debt secured [and except as between the parties, no lien is created by a mortgage which is not *339 properly recorded in the county where the mortgaged property is, as against a third person who has no knowledge of the mortgage]. If the mortgagor fails to pay according to the conditions of his contract, then, the law provides the means of enforcing payment, by a judgment against the property, and a sale by execution, issued upon it. . . It is in the nature of a contract, by which a lien is created upon property, to secure the payment of a debt, with interest and costs. The lien is part and parcel of the contract; it grows out of the act of the parties, and exists as well as anterior as subsequent to the judgment foreclosure. . . The duty of the court is to ascertain the amount due on the mortgage, and to order the sale of the property. The judgment is an ascertainment of the amount due, upon which the process issues for the sale of the property; that judgment is clothed with no lien; it is the means by which the lien created by the mortgage is fixed upon the property for the debt due; and it is the basis of a process by which that lien is enforced; that is its legal character. The lien is ascertained by reference to the mortgage; it is anterior to the judgment; it takes date from the date of mortgage. And although to some intents the mortgage may be considered as merged in the judgment, yet, for the purposes of the lien it is still vital. It is manifest, therefore, that a judgment of foreclosure differs from a general judgment in this essential particular; that no lien attaches to it. This being the case, it is not within the mischief intended to be remedied by the act of 1823. The mischief which that act was intended to remedy, grew out of the lien of judgments. The objects of the act of 1823 are declared in the title and preamble of the act of 1822, of which . . it is amendatory. The title is `An act to amend the 26th section of the judiciary act passed 16th day of December 1799; and also, to prevent a fraudulent enforcement of dormant judgments.' The preamble, after reciting that a contrariety of decisions had taken place in the different circuits of the State, as to the time when the property of the person against whom a judgment is entered, is bound, proceeds to declare: `And dormant judgments, by being collusively kept open, are made the instruments of fraud on innocent purchasers, and often operate oppressively on vigilant and bona fide creditors. Be it enacted, c.' From both of which, it is clear that the mischief of the act of 1799 was this, to wit: judgments by that act, having a lien from their date, which *340 bound all the property of the defendant, then by him owned, or subsequently acquired, and which overrode the title of innocent purchasers, and also the lien of younger judgments, werecollusively kept open. The mischief was, that these judgments were fraudulently kept open when paid; their lien continuing through an indefinite time. The object of the law was, to protect the rights of innocent purchasers and vigilant bona fide creditors. (See a case giving this construction to the acts of 1822 and `3 determined at Gainesville in September last, and not yet reported. 7 Ga. R.) Accordingly, in pursuit of this object, the 3d section of the act of 1822, and the act of 1823, make null and void all judgments upon which no execution has issued within seven years; or if execution has issued, upon which execution no return shall be made within seven years, yet, with the right reserved in the plaintiff to renew, with a lien in the revived judgment, commencing at the time of the revival. This was the remedy. The construction which this court has given to this act is that such judgments are not void for all purposes; their lien is annulled, and also their capacity to enforce a sale; but they are valid, as the evidence of a debt which will support an action, and may be revived by scire facias. If these things are so, how can it be said that judgments on mortgages, which have no [?] lien, are within the mischiefs to be remedied by these statutes? Again, these statutes, being amendatory of the 26th section of the judiciary act of 1799, and their provisions having reference to judgments, they are clearly to be considered as relating alone to the judgments which are embraced in that section. And what kind of judgments are they? Not judgments on mortgages, for this conclusive reason, to wit: The act of 1799 relates to judgments which bind all the property of the defendant, from their date. The act of 1799, speaking of judgments, enacts that `all the property of the party against whom such judgments shall be entered, shall be bound from the signing of the first judgment.' The legislature did not intend to embrace judgments on mortgages, in the 26th section of the act of 1799; it has never been so held by any court in Georgia. They did not intend to interfere with the law of mortgages — to enlarge their specific lien into a general lien. Neither, therefore, the old law, under which the mischief originated, nor the new laws, which prescribe the remedy contemplated judgments upon foreclosure of mortgages." *341
See also Horton v. Clark,
In Conway v. Caswell,
In Collier v. Bank of Tupelo,
The plaintiffs instituted the present suit for the purpose of enforcing their lien, as well as for the purpose of obtaining a judgment against the property of the defendant generally. The cases of Pace v. Shields-Geise Lumber Co.,
The lien in this case, which arose under contract between the plaintiffs who had furnished the materials and the defendant, the owner of the real estate upon which the plaintiffs seek to assert a *344
lien for the price of the materials furnished in the improvement of the real estate, arose, as provided in the Code, § 67-2002, on the completion by the plaintiffs of their contract and the recording of their claim of lien within three months afterwards in the office of the clerk of the superior court, as provided in § 67-2002 (2). The lien was then established. No judgment afterwards was required for the establishment of the lien. The judgment required to establish the lien as provided in § 67-2002 (3) is required only where the material has been furnished to a contractor who has contracted with the owner of the real estate to improve the real estate. This subsection does not require, as a condition precedent to the establishment of a lien, a judgment against the owner of the real estate to whom the plaintiffs as materialmen have directly furnished the material under a contract with him. As stated for the court by Judge Powell in Buck v.Tifton Mfg. Co., supra, the requirement of paragraph 3 "that suit to recover the claim must be commenced within twelve months, relates to the action against the contractor, and not to the subsequent proceeding against the landowner." See also SouthernRailway Co. v. Crawford Slaten Co.,
It follows that the judgment in this case, in so far as it sought to enforce the lien against the particular property, did not create a theretofore non-existent lien, and was not affected by the dormancy statutes. The court erred in sustaining the affidavit of illegality on this ground. *345