Ashmore v. Whatley , 99 Ga. 150 ( 1896 )

Simmons, C. J.

1. A bona fide 'purchaser 'of the absolute title of real estate who bought without notice of a materialman’s lien upon the same, which at the time of the purchase had been neither recorded nor foreclosed, took the property divested of such lien. 1 Jones, Liens, §1048; Thornton v. Carver, 80 Ga. 400, 401, and cases cited.

2. One who derived title from such innocent purchaser was also protected, although he may have had notice of the lien. This latter proposition is sustained in principle by the decisions of this court in Stamper v. Hayes, 25 Ga. 546; Douglass v. McCrackin, 52 Ga. 596; Dotterer v. Pike, 60 Ga. 29.

Judgment affirmed,.

Tbe plaintiffs were materialmen, and as snob furnished Killingswortb witb materials to tbe amount of $70 for tbe improvement of bis dwelling, from January 16 to February 10, 1893. Tbey filed and bad recorded tbeir lien witbin thirty days of tbe latter named date; and foreclosed tbe same witbin twelve months. Upon tbe levy of tbeir ■execution, a claim was interposed by Whatley. ELUingsworth conveyed tbe realty upon which tbe material was used, on February 18, 1893, to Adams, who conveyed tbe same on tbe same day to tbe claimant. Claimant knew Killingsworth was making improvements on tbe property, but did not know tbe materials were being bought on credit from plaintiffs; knew be was buying some of them from plaintiffs, and bad loaned him some money to pay plaintiffs witb; defendant was making tbe improvements at claimant’s request, as be (claimant) expected to buy tbe property after tbey were made. He did not know that plaintiffs claimed a lien until long after tbe same bad been recorded. Tbe court directed a verdict for tbe claimant, and plaintiffs excepted.

Jolvn R. Irwin, for plaintiffs.