28 Ga. App. 72 | Ga. Ct. App. | 1922
Lead Opinion
A rule against the sheriff was granted upon the petition of the Southern Bank & Trust Company, praying that he be required to pay to it certain funds in his hands arising from the sale of realty sold under a judgment in its favor. This judgment resulted from a suit on notes secured by deed to the realty, and was declared to be a special lien on said land. Paul Elmore, a material-man, intervened, claiming a lien on the said funds, for lab.or and material furnished. This intervention was demurred to. The demurrer was sustained and the intervention u disallowed.” Elmore excepted to the refusal to allow him to intervene, and to the order awarding the funds to the Southern Bank & Trust Company.
Therefore, under the facts above quoted, which must be taken as true as against a general demurrer, it is clearly alleged that the plaintiff bank knew that the materialman furnished material and did work in improving the property; that the plaintiff, before paying out the full amount of the loan, had notice that the claimant had furnished, was furnishing and would furnish certain material and do certain work in the improvement of the property; and that the plaintiff bank received the benefit of such material furnished and work done, by the claimant.
The opinion in the Bennett case, supra, impliedly at least, recognizes that such facts as above narrated would alter the general rule there applied, for it was there said: " It is alleged that the de
It also seems clear that the claimant would be entitled to a lien for the whole amount of material furnished and work performed, and not merely for work done and material furnished from the time it is alleged that the plaintiff ratified and adopted his contract, since, as was held, in the recent case of Oglethorpe Savings & Trust Co. v. Morgan, 149 Ga. 787 (102 S. E. 528) : “ The lien of the contract on real estate improved under a contract with the owner thereof, as provided by the Civil Code (1910), § 3352, if and when f created and declared,’ as required by section 3353, attaches from the time the work under the contract is commenced, and takes priority over the title acquired, with actual notice of the contractor’s claim of lien, by a subsequent grantee in a trust deed from the owner of the real estate, although the deed was executed and recorded before the completion of the contract and before the claim of lien was recorded and before commencement of an action to recover the amount of the claim. A conveyance of the property to the purchaser, with actual notice of the contractor’s claim of lien, after the contractor’s lien attaches by a beginning of performance under the contract, does not affect the right to a lien for a whole, though a part of the execution of the contract is before and a part after the time of the conveyance.”
Moreover, a money-rule proceeding is of an equitable nature, and the money should be paid to those who are equitably entitled to it.
It follows from what has been said that the court erred in dis
Judgment reversed.
Dissenting Opinion
dissenting. I can not agree with the opinion of the majority of the court on the merits of this case. I think the principle announced in Bennett Lumber Co. v. Martin, 132 Ga. 491 (64 S. E. 484), should control this case and the judgment should be affirmed. In that case the Supreme Court held: “ Where title to real estate is conveyed by a duly recorded deed to secure a debt, and the grantee takes the deed and advances the money loaned, without notice and before the record of a materialman’s lien upon the propert)1', the title thus acquired is superior to such lien.” See also Milner v. Wellhouse, 148 Ga. 275, 276 (2) (96 S. E. 566); Willingham-Tift Lumber Co. v. Barnes, 147 Ga. 209 (2) (93 S. E. 201); Englehart-Hitchcock Co. v. Central Investment Co., 136 Ga. 564 (71 S. E. 787). It is insisted in the brief of counsel for plaintiff in error that “ while the conveyance in the case at bar was before the contractor began his work, the advances under the conveyance, as per the program at the time of the conveyance, were made some before but mostly after the beginning of the contractor’s work, and Paul Elmore’s contract was performed with full actual notice to the Southern Bank & Trust Company, who even guaranteed the payment for the fixtures installed by his labor.” (Italics ours.) The fact that at the time the loan was made a program was agreed upon as to how the money borrowed was to be paid out can not affect the lien created by the deed; nor will this lien be affected because of the fact that “petitioner paid the pay-rolls on said improvements, and paid for the material going into said building, and advanced money for the architects and contractors on said work.” Nor would the lien be affected even though the Southern Bank & Trust Company guaranteed the payment -for the fixtures installed by Elmore, the company’s deed antedating such installment. The ruling is not in conflict with that in Oglethorpe Savings & Trust Co. v. Morgan, 149 Ga. 787 (102 S. E. 528), cited and relied upon by counsel for plaintiff in error, but is easily differentiated therefrom. The statement •of facts in that case shows that “ at the time of the execution of the trust deed the trustee named therein, the substituted trustee, and the several creditors had actual knowledge of the pendency of the plain