Opinion
43652.
SUBMITTED MAY 6, 1968.
DECIDED OCTOBER 15, 1968. REHEARING DENIED DECEMBER 13, 1968.
Materialman's lien. Chattooga Superior Court. Before Judge Painter.
Robert Edward Surles, for appellant.
Thomas J. Espy, Jr., F. H. Boney, for appellees.
1. (a) There is no provision of law for one who improves real estate while the legal title or its equivalent is in him to relieve another from a lien on the property by the making of an affidavit as is authorized under Code Ann. § 67-2001 (2).
(b) The court erred in its judgments directing a verdict in favor of the defendants and overruling the plaintiff's motion for a new trial.
2. The court erred in taxing the costs of the previous appeal upon the appellant.
SUBMITTED MAY 6, 1968 — DECIDED OCTOBER 15, 1968 — REHEARING DENIED DECEMBER 13, 1968 — CERT. APPLIED FOR.
This is the second appearance of this case before this court. On the previous appeal, Builders Supply Co. v. Pilgrim, 115 Ga. App. 85 ( 153 S.E.2d 657), this court affirmed the lower court's orders granting the motions for summary judgment of defendants Fred and Ross Thomas and the First Federal Savings Loan Association of Summerville, thereby adjudicating merely the superiority of First Federal's lien over the plaintiff's claimed materialman's lien and the nonliability of the plaintiff to First Federal for attorney fees for bringing the action. For the facts see the report of that case. In the subsequent trial of the plaintiff's action to establish its special lien against the Thomases' property, the sole defense of defendants Fred and Ross Thomas was the affidavit, admitted in evidence over the plaintiff's objection of Andrew Pilgrim, the erstwhile owner and contractor, that all repairs and improvements had been paid in full, including labor and material. At the close of the evidence, both sides moved for a directed verdict. The court directed a verdict in favor of the Thomases and overruled the plaintiff's subsequent motions for judgment n.o.v. and new trial, from which judgments the plaintiff appeals.
1. Regardless of the effect of the joint affidavit of Pilgrim and the Thomases on the issue of the priority of the claimed liens of the materialman and the lending institution, which was considered in the former appeal, the affidavit of Pilgrim, who occupied the dual status of owner and quasi contractor at the time of the improvement of the realty, is no defense to the materialman's action. Reynolds v. Magbee Bros. Lumber c. Co., 117 Ga. App. 252, 253 (2) ( 160 S.E.2d 531), reversed on another ground, Reynolds v. Magbee Bros. Lumber c. Co., 224 Ga. 379 ( 162 S.E.2d 327). There is no provision of law for one who improves real estate while the legal title or its equivalent is in him, to relieve another from a lien on the property by the making of an affidavit as is authorized under Code Ann. § 67-2001 (2) (Ga. L. 1897, p. 30, as amended). The statement in Builders Supply Co. v. Pilgrim, supra, p. 89 (3), to wit: "It did take an affidavit signed by Pilgrim and both Thomas brothers to the effect that there were no unpaid bills of any nature for labor or material outstanding against the property, and was entitled to rely upon such affidavit in making the loan in the absence of either actual or constructive knowledge to the contrary," is not to be interpreted as holding to the contrary of what we have just said. That statement was made for the purpose of throwing light on the good faith of the bank. Therefore, the trial court erred in its judgment directing the verdict in favor of the defendant owners, the Thomases. Since the evidence raised the issue of the amount of the lien, however, it was not error to overrule the plaintiff's motions for a directed verdict and for judgment n.o.v. The court also erred in its judgment overruling the plaintiff's motion for a new trial on the general grounds.
2. Appellant obtained a judgment of reversal of the trial court's order overruling special demurrers to allegations of the answer of First Federal Savings Loan Association seeking to recover attorney's fees for defending the suit, which is such a substantial modification of the judgment on appeal as to entitle appellant to a judgment for costs of bringing the former appeal to this court. U.S. Fidelity c. Co. v. Luttrell, 113 Ga. App. 176 (1) ( 147 S.E.2d 647). Accordingly, the trial court erred in its order casting the costs of the previous appeal upon the appellant and in not taxing them against the other three parties.
Judgments affirmed in part; reversed in part. Motion for rehearing by appellee is denied. The judgments are adhered to on motion for a rehearing granted on the appellant's motion. Eberhardt and Whitman, JJ., concur.