106 Ga. 592 | Ga. | 1899
The Dixie Lumber & Manufacturing Company, on August 11, 1896, filed its petition against Cochran and Waters, alleging that it had furnished and delivered to Cochran, who had contracted to build a house for Waters, a bill of lumber and other building material to the amount of $585.08, which was delivered on the land of Waters and was used in building the house and improving said land, giving the location of it; that the material was furnished August 12, 1895; that it had duly filed and had recorded a materialman’s lien on the property; that it had taken no other security for the debt; that within the prescribed time it had served Waters with written notice, as required by the statute, of the claim of lien and filing the same. It alleges that this suit is brought to enforce such lien within twelve months from the completion of the contract. It prays a general judgment against Cochran for $141.79, with interest, and that its lien be set up by judgment against the property improved for the amount allowed by law. To the petition was attached copy of the notice served upon Waters on August 26, 1895. There was also attached copy of the record of the claim of lien filed.August 26, 1895, and an itemized bill of the material furnished. ,By amendment the
The single question made by the record is, whether the lien of materialmen must be enforced against the real estate of the owner under the terms of the statute as it existed at the time the lumber and material were furnished, or under the provisions of the amending statute which was in force at the time of the trial. According to the petition, the provisions of the act of 1893 were in force at the time the lumber and material were furnished. This act provides that the lien of materialmen shall- attach upon the real estate improved, as against the true owner, for twenty-five per cent, of the contract price of the material furnished for the improvement of the real estate. Acts 1893, p. 34. By the provisions of the act approved Dec. 16, 1895, which was amendatory of the act of 1893, the lien should attach upon the real estate as against the owner to the extent of not more than twenty-five per cent, of the contract price agreed to be paid by the owner to the contractor. By the act approved Dec. 18, 1897, which was in force at the time of the trial, it was provided that the lien should not attach for a sum greater than the balance that the owner might be indebted to the person having the contract at the time of the service of the
Jones, in his work on Liens (vol. 1, § 107), citing the case of Frost v. Ilsley, 54 Me. 345, says: “A lien created by statute may be taken away or modified by a subsequent statute. . . •The lien is but a means of enforcing the contract, a remedy given by law; and, like all matters pertaining to the remedy and not to the essence of the contract, until perfected by proceedings whereby rights in the property over which the lien is claimed have become vested, it is entirely within the control of the lawmaking power in whose edict it originated.” The author also cites a number of cases to be found in note on page 73, to support the doctrine that the repeal of the statutory lien defeats the lien remedy, although at the time of the repeal the proceedings prescribed by the statute for enforcing the lien
Even if it be held that the lien given to mechanics or materialmen who do the work or furnish the material for the erection of valuable improvements on land is a remedy for the enfoi’cement of the contract, we think the better rule for the construction of such a remedy is that laid down by the Supreme Court of the United States in the case of Gunn v. Barry, 82 U. S. 610, as follows: “The legal remedies for the enforcement
Judgment affirmed.