52 S.E.2d 580 | Ga. Ct. App. | 1949
1. The defendant Jones had only a usufruct in the realty involved, to which a materialman's lien as here sought cannot attach, and which is not subject to levy and sale, and the trial court erred in overruling his general demurrer to the petition.
2. The interest of the lessor Torbett in the real estate is not subject to a materialman's lien for material used in making improvements on the property, pursuant to a contract made by the lessee, who had only a usufruct in the property, and the trial judge did not err in sustaining the general demurrer of the defendant Torbett to the petition, and in dismissing the petition as to such defendant.
The petition alleged the following: The plaintiffs are materialmen and are in the business of furnishing material for the erection and improvement of buildings. O. A. Torbett is the owner of certain real estate, located in Butts County, which is described in detail as being a certain parcel of land in Indian Springs, on which is located a store building now known as the "Wigwam." W. R. Jones is the lessee of this property, the lessor being O. A. Torbett. A copy of the lease is attached to the petition, certain details of which are given below. H. H. Buckner was employed by the lessee to repair and improve the above-described property. He has now absconded and his whereabouts is unknown to the plaintiffs. The plaintiffs delivered to Buckner on the premises of the above-described property material valued at $1955.22 for the improving and repairing of the existing building. An itemized statement of this material is attached to the petition. The above amount is due and unpaid although demand has been made for it. A materialman's lien for this amount was filed in the office of the Clerk of Butts Superior Court on June 19, 1948, and recorded June 21, 1948, against O. A. Torbett, and another filed August 2, 1948, and recorded August 3, 1948, against W. R. Jones. These liens were filed and recorded within three months after the furnishing of the materials. This action is brought within twelve months from the date of the lien. Judgment is sought against the contractor Buckner, and for a special lien against the property improved.
The provisions of the lease, in part, are as follows: O. A. Torbett, the lessor, has leased to W. R. Jones, the lessee, the described property, for a term of three years, commencing April 1, 1948, and ending on March 31, 1951, for a rental of $1400 per year, payable in instalments of $700 on April 1 and November 1 of each year. "The lessor agrees to renew this lease agreement for a period of not more than seven years commencing April 1, 1951, at the same rental (fourteen hundred dollars per year), upon being notified by the lessee prior to March 31, 1951, that the said lessee desires to extend this lease agreement beyond *792 March 31, 1951." The lessee is permitted to make such improvements on existing buildings as he may desire. Any additions or extensions of the framework of the buildings become a part of the realty and may not be removed at the expiration of the lease, but the lessee has the right to remove any and all fixtures and appliances and other equipment which he may have placed in existing buildings, and he has the right to build such additional buildings as he may desire, with the right and privilege to remove them during the term of the lease or any extension thereof.
The contractor, H. H. Buckner, was never served. The defendants, Torbett and Jones, filed separate general demurrers. The trial court sustained the demurrer of Torbett and overruled the demurrer of Jones. Jones excepted to the judgment of the court overruling his demurrer. The plaintiffs, E. I. Rooks Son, filed a cross-bill of exceptions, assigning error on the ruling and judgment sustaining the demurrer of the defendant Torbett, and dismissing the action as to him.
1. Code § 67-2001 (1, 2) provides: "1. All mechanics of every sort, who have taken no personal security therefor, shall, for work done and material furnished in building, repairing, or improving any real estate of their employers; all contractors, materialmen, and persons furnishing material for the improvement of real estate; . . shall each have a special lien on such real estate . . 2. When work done or material furnished for the improvement of real estate is done or furnished upon the employment of a contractor or some person other than the owner, the lien given by this section shall attach to the real estate improved as against such true owner for the amount of the work done or material furnished, unless such true owner shall show that such lien has been waived in writing, or shall produce the sworn statement of the contractor or other person, at whose instance the work was done or material was furnished, that the agreed price or reasonable value thereof has been paid: Provided, that in no event shall the aggregate amount of liens set up hereby *793
exceed the contract price of the improvements made." The lien sought to be enforced here attaches to realty rather than personalty. The term true owner as used in the above Code section would include one having an estate in realty, and the lien prescribed would attach to such an interest in realty. See JamesG. Wilson Mfg. Co. v. Chamberlin-Johnson-DuBose Co.,
2. One who furnished material for the improvement of real estate, upon the employment of a contractor whose contract for *794
the improvement is with a lessee, and who sustains no contractual relationship with the owner of the fee, is not entitled to a materialman's lien as against such owner. Pittsburgh Plate GlassCo. v. Peters Land Co.,
Judgment reversed on the main bill of exceptions; affirmed onthe cross-bill. Felton and Parker, JJ., concur. *795