Love v. Cox

68 Ga. 269 | Ga. | 1881

Jackson, Chief Justice.

The question made in this record is whether the general lien of a laborer, unrecorded and unforeclosed, has preference over a judgment creditor whose judgment is older than the judgment of the laborer, though younger than the date of his labor or of its completion. The court below gave the preference to the judgment creditor, and, on that ruling, error is assigned in this court.

The laborer sued on his open account for work done as a mechanic, but did not claim any lien, and merely brought suit on his account and got a general judgment therefor.

There can be no doubt that the laborer has not only a special lien on the premises he works upon, but also a general lien on all the property of his employer, and that when he complies with the remedies provided by law for the assertion of this lien, it operates from the completion of the work. Acts of 1873, p. 42. Code, §§1974-5-6.

What must the laborer do in order to assert this lien and make it a valid lien against the property of his employer? Section 17 of the act of 1873, on page 46 of the Acts of 1873, declares how all liens on real and personal property, under that act (not otherwise provided for, and this is not), shall be foreclosed, and.on what terms the lien is to be valid; and so does the Code, in §§1990 and 1991, where this provision is codified. He must record his claim and commence suit within the time prescribed in section 1980 of the Code — that is, within thirty days he must record it, and within twelve months commence suit. The reason of the law is as obvious as the law itself is plain. Other creditors should know what liens are on the debt- or’s property, and the debtor should not be crippled in getting credit by having a lien, resting purely in parol evidence, covering his entire estate. In this case the laborer did nothing of the sort, and the evidence of his asserted lien reposed in his own breast until this property was sold and the money in the sheriff’s hands.

But it is said that he could not pursue the remedy provided by law, because his lien was on all of his employer’s property, and he could not specify. The answer is in 43 Ga., 9. He need not do what he could not do. All that he had to do was to record his claim and assert his lien on all the real property of the debtor.

It is said again that his right of lien operated on personalty as well as realty, and he could not pursue both in one proceeding, because the remedies provided in the one case differ from those in the other. Very well. Let him then proceed upon all the personalty, under the law applicable to it, and upon the realty on the law applicable to that sort of property. Just as if he has a claim to personalty and realty in the possession of one and the same man, his remedy would be trover for personalty and ejectment for realty; or, if he held a mortgage on real and personal property in the same deed, he would foreclose for the real estate, according to its appropriate mode, and against the personal estate in the manner prescribed for foreclosure as to that.

In our view, the question is scarcely questionable, and the judgment of the court below is affirmed.

Judgment affirmed.