Opinion
14187.
SEPTEMBER 22, 1942.
Equitable petition; intervention. Before Judge Dorsey. Fulton superior court. March 26, 1942.
Fraser Irwin, for plaintiff.
Roy S. Drennan and Julius A. McCurdy, for defendants.
1. There can be no valid foreclosure of a materialman's lien for material furnished to a contractor and used in improving the real estate of another person against which the lien is claimed, in the absence of a judgment in favor of the materialman against the contractor for the price or value of such material; and it must also appear, among other things, that suit for recovery of such judgment against the contractor was commenced within twelve months from the time the claim became due. Code, §§ 67-2001, 67-2002; Pike Brothers Lumber Co. v. Mitchell, 132 Ga. 675 ( 64 S.E. 998, 26 L.R.A. (N.S.) 409); Columbian Iron Works v. Crystal Springs Bleachery Co., 145 Ga. 621 ( 89 S.E. 751); Southern Railway Co. v. Crawford Slaten Co., 178 Ga. 450 ( 173 S.E. 91); Kwilecki v. Young, 180 Ga. 602 ( 180 S.E. 137).
2. Accordingly, in the instant suit by the grantee in a security deed against the grantor, to foreclose the deed as an equitable mortgage, and against other persons, to require them to appear and assert in the same proceeding any claim or claims of lien which they might have against the same property, in order that the rights of all parties might be determined in the one proceeding, where one of the persons named as a possible lien claimant filed an intervention in which, as first amended, he alleged that he had furnished material in a stated sum for the improvement of such real estate, and prayed that the court declare his lien "prior to all other liens," and that he have judgment against the defendant (the owner of the real estate) for the amount so stated, but in which he sought no judgment against any person as contractor until more than twelve months after his original intervention was filed, when by a second amendment he alleged that the material had been furnished to a named contractor, and prayed that such contractor be made a party defendant, and that he recover a judgment against him for the value or price of such material, such intervention as finally amended was insufficient to show any lien or right of lien as against such real estate; it appearing therefrom that the intervenor had not recovered a judgment against the contractor and had not instituted an action for such recovery within twelve months from the time the claim became due. Griffin v. Gainesville Iron Works, 144 Ga. 840 (2) ( 88 S.E. 201); Hood Brick Co. v. Mangham, 161 Ga. 457 ( 131 S.E. 172); Dwight v. Acme Lumber Supply Co., 183 Ga. 139 ( 187 S.E. 668).
3. There being no contention that the intervention should have been allowed to proceed for the purpose of recovering a personal judgment either as against the owner of the real estate or as against the contractor, independently of any claim of lien as a materialman, no ruling will be made as to these questions. Cf. Baldwin v. Shields, 134 Ga. 221 ( 67 S.E. 798); Usry v. Hines-Yelton Lumber Co., 176 Ga. 660 (2 b) (168 S.E. 249).
4. The facts of the present case do not bring it within the ruling in Massachusetts Bonding Insurance Co. v. Realty Trust Co., 142 Ga. 499 (5) ( 83 S.E. 210), to the effect that where an owner of realty, before the time for foreclosing liens had expired, sought and obtained an injunction preventing materialmen from proceeding to perfect their liens, such owner could not defeat their claims of lien on the ground that they had not obtained judgments against the contractor. In the instant case no injunction was sought or obtained by the owner of the realty; and while such injunctive relief was prayed by the plaintiff in the suit to foreclose the security deed, no injunction was granted, but the intervenor was merely made a party in the case, with the privilege of filing such pleadings as he might be entitled by law to file. It does not appear that he was prevented from perfecting his lien in the manner required by law.
5. Under the preceding rulings, the judge did not err in sustaining the general demurrer and dismissing the intervention as amended.
Judgment affirmed. All the Justices concur.
No. 14187. SEPTEMBER 22, 1942.
On August 16, 1938, Cofer Brothers, a partnership and the grantee in a security deed, filed a petition in equity against Mrs. Mary Walker, the grantor, praying for foreclosure of such deed as an equitable mortgage, and for appointment of a receiver of the property described therein, and that all persons claiming liens for labor or material used in improving the dwelling-house located on the land conveyed by such deed be required to assert their claims in the equitable suit, and be restrained and enjoined from otherwise proceeding to enforce the same. The defendant (grantor in the security deed) consenting, a receiver was appointed as prayed. On October 13, 1938, the plaintiff filed an amendment to the petition, alleging that named parties, including M. E. Smith, had filed liens against the property described in the petition, and that such parties "should be restrained and enjoined from prosecuting separate actions, and should be required to intervene and set up their respective claims and/or liens . . and have the same adjudicated." The court issued a rule calling upon such parties to show cause at a stated time and place "why they should not be made parties, and why the relief prayed for in this amendment should not be granted." On November 18, 1938, upon the hearing of this rule the following order was passed: "The rule issued by the court and served on Homer D. Tomlin, M. E. Smith, and Pattillo-L'Engle Company, upon the amendment and motion of plaintiff, requiring each of said parties to show cause why they should not be made parties to the case and bound by the proceedings, and be restrained and enjoined from prosecuting separate actions, coming on to be heard in its regular order, and the court being fully advised in the premises, it is ordered, adjudged, and decreed that" the three parties named "be and they are made parties to this case, with the privilege of filing such pleadings as they are entitled by law to file, within ten (10) days."
M. E. Smith filed an intervention on November 29, 1938. An amendment to this intervention was filed on January 13, 1939. As thus amended the intervention alleged, that intervenor has a materialman's lien against the property in question, recorded on Fulton County records; that he furnished the material before the security deed was given to the plaintiffs; "that 95% of said material had been furnished and was on the ground ready for the construction of said home at the time the mortgagee, Cofer Brothers, took said mortgage, and therefore his lien is prior in rank to that of the mortgagee herein;" that the amount of said lien was $472, representing the contract price of material going into the construction of the improvements. He "respectfully requests this court to declare his lien prior to all other liens," and that he have judgment against the defendant, Mrs. Walker, for $472.
In another amendment to his intervention, offered on November 12, 1941, Smith alleged: Intervenor's claim is based upon the sale of lumber which went into the construction of the house built on the premises of the defendant. Luke A. Evans was the contractor who built said house under a contract between himself and the defendant. The sum of money set out in said intervention, $472, represents the contract price for the material ordered by said contractor from intervenor. Said lumber was delivered upon the described premises of the defendant, and was accepted by Evans as contractor, and the contract price has been approved as correct by said contractor. In this amendment the intervenor prays (a) for judgment against the contractor for said sum with interest from August 1, 1938; (b) that the contractor be made a party to the case for the purpose of securing said judgment and adjudicating the correctness of intervenor's claim; (c) that said contractor be served with a copy of intervenor's original intervention and all amendments thereto.
This amendment was allowed subject to objection. On February 28, 1942, the defendant Mrs. Walker filed the following demurrer and motion to strike: "That said amendment [the last amendment of Smith] should not be allowed and should be stricken, because the original suit was one brought by the holder of a loan deed to foreclose a debt against the defendant; that intervenor, M. E. Smith, filed his intervention in said proceedings, in which he sought to foreclose a lien for a debt growing out of the furnishing of materials to this defendant, in which intervention it was claimed that said materials were furnished before the loan deed of the plaintiff, Cofer Brothers, was recorded; whereas said amendment to said intervention now seeks to change the cause of action by alleging that the indebtedness in question was due by a party other than the one named as defendant, to wit, Luke A. Evans; it being alleged that said materials, etc., were furnished to the said Luke A. Evans, to improve the property of this defendant, the said Luke A. Evans being the contractor employed by defendant; and for the further reason that the original intervention shows that the materials in question were furnished prior to the recording of plaintiff's security deed, which was recorded in December, 1937 (the suit for the foreclosure being filed in August, 1938), which is nearly five years prior to the filing of the amendment to the intervention seeking to foreclose the lien, which is contrary to the statute that provides that the lien must be filed within three months and foreclosure proceedings instituted thereon within one year. That said amendment to said intervention should be stricken, for the reason that the amendment together with the original intervention shows upon its face that intervenor is not entitled to the relief sought; for the reason that the same shows that intervenor's lien was filed on August 9, 1938, and is now seeking to obtain a judgment against the contractor about three and one half years after the date said lien was filed. Wherefore defendant prays, that said amendment to the intervention of M. E. Smith be stricken; that this demurrer thereto be sustained; and that the court decree as a matter of law upon the face of the pleadings that the said M. E. Smith is not entitled to foreclose his original lien, and is not entitled to the relief sought."
On March 26, 1942, the court sustained the foregoing demurrer and dismissed "the intervention of M. E. Smith, as amended." To this judgment Smith excepted.