Marshall v. Peacock , 205 Ga. 891 ( 1949 )

A. petition which fails to show that there was a contract with the owner of the property, or that the owner adopted the contract as one made for him, so as to bring him into contractual relations with the contractor furnishing the materials, does not state a cause of action for the foreclosure of a materialman's lien.

No. 16721. SEPTEMBER 16, 1949. REHEARING DENIED OCTOBER 13, 1949. Irvin Marshall filed a petition for injunction, receivership, and other equitable relief against E. Julian Peacock, Sheriff of Bibb County, A. L. Lawson, Deputy Sheriff of Bibb County, H. K. Burns, and Hughie Gustin Jenkins, residents of Bibb County. In substance the petition, as amended, alleged: On or about April 29, 1948, H. G. Jenkins entered into possession of the land described under a contract of sale from Mrs. S.W. Miller, a copy of the contract being attached and made a part of the petition. On July 7, 1948, and pursuant to the contract, Mrs. Miller executed a warranty deed to H. G. Jenkins. On July 7, 1948, Jenkins executed and delivered to Mrs. Kathleen R. Pape a deed to secure debt with power of sale to the property. A copy of the deed to secure debt is attached as an exhibit. Beginning on or about May 17, 1948, and ending on or about July 26, 1948, the plaintiff furnished to H. G. Jenkins material to build a home on the property, to the value of $3350.94. On July 28, 1948, the plaintiff filed a claim of lien on the property for material furnished, which was duly recorded. "The fact of the furnishing of the materials was well known to the said Mrs. Kathleen R. Pape during the time they were being furnished and prior to the giving of the deed to secure debt . . and consented to by her." On October 11, 1948, the deed to secure debt was transferred by Mrs. Pape to H. K. Burns, which transfer was duly recorded. On December 1, 1948, Burns filed suit against Jenkins to recover $3337.50, plus attorney's fees and costs, and prayed for a special lien on the land. The suit was brought on six notes, the first being dated July 7, 1948, and due November 7, 1948, in the amount of $1360.90; the remaining five notes being subsequently dated on different dates for different amounts, and all due on November 7, 1948. On February 7, 1949, a verdict and judgment was entered and a special lien declared on the land described. A fi. fa. was issued in favor of Burns against Jenkins, a levy was made by the sheriff, and the land was advertised for sale on the first Tuesday in April, 1949. The advertisement recited that the sale was to be had to satisfy the fi. fa. described. The sale will not bring a sum sufficient to satisfy the fi. fa., and the proceeds of the sale will not be sufficient to satisfy the plaintiff's lien. The plaintiff's lien is superior to the lien of the fi. fa. Jenkins is insolvent, and if the sale is allowed to proceed, the plaintiff will suffer irreparable loss. He has no adequate remedy at law.

The prayers of the petition were: for process; that Peacock, as sheriff, Lawson, as his deputy, and other deputies, be temporarily and permanently enjoined from selling the property described; that Burns be temporarily and permanently enjoined from selling the property, either by himself or agents; that Jenkins be enjoined from conducting the sale or disposing of the property; that a receiver be appointed; that the plaintiff's materialman's lien be foreclosed in equity and be declared superior to the lien and title of any person whomsoever; and for other equitable relief.

The general demurrers of the defendants to the petition, as amended, were sustained, and the plaintiff excepts to that judgment. In the present case the plaintiff seeks to foreclose in equity an alleged materialman's lien. No copy of the alleged lien is attached to the petition, and the allegations with reference to such lien are vague and incomplete, it being alleged only that beginning on or about May 17, 1948, and ending on July 26, 1948, the plaintiff furnished Jenkins material to build a house, that on July 28, 1948, the plaintiff filed his claim of lien for the material furnished, and that the lien was duly recorded.

In a proceeding to foreclose a materialman's lien the plaintiff must show that the amount for which he asserts a lien comes, in whole or in part, within the contract price agreed on by the contractor and the owner of the property improved. Stevens v.Georgia Land Co., 122 Ga. 317 (50 S.E. 100); CentralRailway Co. v. Shiver, 125 Ga. 221 (53 S.E. 610); GeorgiaSteel Co. v. White, 136 Ga. 494 (9) (71 S.E. 890);Consolidated Lumber Co. v. Ocean Steamship Co., 142 Ga. 190 (82 S.E. 532); Young v. Harley-Mitchell Hardware Co.,173 Ga. 38 (159 S.E. 567).

In Central Railway Co. v. Shiver, supra, in a proceeding to foreclose a materialman's lien, it was held in part: "It seems to be the purpose of the statute to charge the owner of real estate with a lien for material furnished only when there was a specific contract for the improvements made, either made by the owner or assented to by him. . . The statute provides that `in no event shall the aggregate amount of liens claimed exceed the contract price of the improvements made.' There could be no limit upon the true owner's liability for material furnished, unless the material were furnished under some contract to which he was a party expressly or by implication. . . There need be no contract between the materialman and the true owner, but there must be a contract for material with a person who has contracted with the true owner for the erection of the improvements. A contract is necessary to fix the liability of the owner and establish a privity between him and the materialman. A stranger may not order work done upon real estate and thus charge the true owner. Neither may a tenant, unless there is some relation existing between him and his landlord other than that of lessor and lessee." See Code, § 67-2001 (2); Reppard v. Morrison,120 Ga. 28 (47 S.E. 554); Picklesimer v. Smith, 164 Ga. 600,607 (139 S.E. 72); Georgia State Savings Assn. v. Wilson,189 Ga. 21 (5 S.E.2d 14); Rutland Contracting Co. v. GayEstate, 193 Ga. 469 (18 S.E.2d 835).

The plaintiff does not allege that he had a contract with Jenkins or any other person to furnish materials, nor does he allege that the lien which he seeks to have foreclosed covers, in whole or in part, the contract price of the materials. In the absence of allegations of a contract, and the amount to be paid under the contract for materials, the petition failed to state a cause of action for any affirmative relief, for unless the plaintiff had a valid, subsisting lien, he would have no right to interfere with the collection of the execution described in his petition.

The allegation of the petition, that "The fact of the furnishing of the materials was well known to the said Mrs. Kathleen R. Pape during the time they were being furnished and prior to the giving of the deed to secure debt . . and consented to by her," is wholly insufficient to show a contract with Mrs. Pape with reference to the materials furnished by the plaintiff.

In Carr Co. v. Witt, 137 Ga. 373, 374 (73 S.E. 668), it was held: "The allegation that Carl Witt `ratified and assented to the contract' means nothing more than that Carl Witt gave his consent that the improvements should be made under the contract between the tenant and the contractor, and does not mean that he adopted the contract as one made for him by the tenant acting as his agent, so as to bring him into contractual relations with the contractor making the improvements and furnishing the material. Pittsburgh Plate Glass Co. v. PetersLand Co., 123 Ga. 723 (51 S.E. 725); Central of GeorgiaRailway Co. v. Shiver, 125 Ga. 218 (53 S.E. 610)."

Under the allegations of the petition, Mrs. Pape was not the "true owner" of the land at the time it is alleged that she consented to the furnishing of materials. On the contrary, the title to the land was in Mrs. Miller up until July 7, 1948, the date on which she executed a warranty deed to Jenkins, who in turn conveyed the property to Mrs. Pape by a deed to secure debt. Construing the allegation quoted and relied upon to show the consent of Mrs. Pape most strongly against the pleader, as must be done on general demurrer, her alleged consent was given at a time when she had no title or interest in the property, and no reason, apparently, to offer any objection to any arrangement or agreement that might be entered into by Jenkins with any person.

The plaintiff does not show any contract with Jenkins, nor does he show any contract with Mrs. Pape, or Mrs. Miller, who was the true owner of the land at the time the plaintiff alleges he started to furnish materials. Under the allegations of the petition, the execution in favor of H. K. Burns, as transferee of Mrs. Kathleen Pape, has priority over any alleged claim of lien of the plaintiff. The trial court properly sustained the demurrers and dismissed the petition.

Judgment affirmed. All the Justices concur.