170 Ga. 164 | Ga. | 1930
Lead Opinion
(After stating the foregoing facts.)
The liens of laborers and materialmen do not rest upon contract, but upon the law which gives to laborers and materialmen liens for labor performed and material furnished in the improvement of real estate. Therefore the exceptions to the judgment of the court below, upon the grounds just stated, are without merit. This contract is relied upon, not for the purpose of showing that the holders of these liens could sue to enforce its stipulations, but solely for the purpose of showing that this real estate was improved in pursuance of a plan or scheme for that purpose, entered into between the grantee and grantor in the security deed. The question for decision is whether, in these circumstances, the liens of laborers for work done, and of materialmen for material furnished, in the improvement of this real estate outrank the claim of the grantee in this security deed for the purchase-money of the real estate improved.
The title of the true owner of land can not be subjected to liens for material furnished or labor .clone in its improvement, unless he expressly or impliedly consents to the contract under whicli the improvements are made. Harman v. Allen 11 Ga. 45; Powers v. Armstrong, 19 Ga. 427; Callaway v. Freeman, 29 Ga. 408; Walker v. Burt, 57 Ga. 21; Rice v. Warren, 91 Ga. 759 (17
Under the authorities aforesaid, where the vendor of land, under an executory contract of sale, puts the vendee in possession, and consents to the improvement of the land by his vendee, or expressly or impliedly authorizes or has co-operated with the vendee in plans for its improvement, or has been active and instrumental in having the improvements made, liens of mechanics for material furnished and labor done in making such improvements are superior to the title of the vendor. In this case the Glendale Terrace Inc. sold and conveyed to Galloway a lot of land, at the same time executing and delivering to Galloway a warranty deed to the lot, and simultaneously therewith took from Galloway a deed to the lot to secure the payment of the purchase-money thereof. The loan deed contained a provision that the vendor therein, that is the owner of the lot, agreed that Galloway should have the right to place a permanent loan on the lot, and a house to be erected thereon, not to exceed 60 per cent, of the appraised value of the house and lot. Here the owner expressly agreed that the purchaser, who was the grantor in the. security deed, would have the right to place a permanent loan on the lot, and the house to be erected thereon, not to exceed 60 per cent, of the appraised value of the house and lot. Here the owner expressly agreed that the purchaser could erect a house thereon, and that he could place a loan thereon not to exceed 60 per cent, of the appraised value of the house and lot. The security deed further provided that Galloway should have the right to place a payroll loan on said lot not to exceed $1,500, and that the grantee in the security deed would subrogate the purchase-money notes to the party making said payroll loan. This loan of $1,500 was to be paid off out of the proceeds of the permanent loan. The weekly payrolls were to be approved by the vendor of the lot. From these circumstances it seems conclusive that the vendor, who was the grantee in the security deed from Galloway, consented to the improvement of this property by Galloway, and
Affirmed.
Dissenting Opinion
dissenting. The determination of one controlling question decides the case upon its merits, That question is whether Brewton and the intervenors who joined with him, and for whose benefit he brought his petition, occupy the place or the relation of beneficiaries in the provision contained in the security deed executed on May 19, 1928, by S. G. Galloway to Glendale Terrace Inc., in consideration of $2100, to secure the repayment of which the deed was executed, which provision is in these words: “Glendale Terrace Inc. agrees that S. G. Galloway shall have the right to place a permanent loan on the above lot and a house to be erected thereon, not to exceed 60% of the appraised value of said house and lot.” Brewton and the other defendants in error insist that they in equity should be treated as the beneficiaries of this part of the contract contained in the deed just referred to. The plaintiffs in error take the contrary position. The defendants in error urge the contention that by the reservation of the right on the part of S. G. Galloway to be allowed to place a permanent loan in the sum of 60 per cent, of the appraised value of the improved property, the rights of Glendale Terrace, of J. T. Williams, or of any one who claims under them by virtue of the transfer of this loan deed, would be subject to the claims of Brewton or the
I can not agree that the question for decision is settled by either of these decisions. There is a clear distinction to be made between those two cases and the instant case. In the first of the two cases cited there was an agreement on the part of the obligor or promisor