Ashmore v. Whatley

• Decision Date: 12 June 1896
• Citation: 24 S.E. 941,99 Ga. 150
• Parties: ASHMORE et al. v. WHATLEY.
• Court: Georgia Supreme Court

24 S.E. 941

99 Ga. 150

ASHMORE et al. v. WHATLEY.

Supreme Court of Georgia

June 12, 1896

Syllabus by the Court.

1. A bona fide purchaser of the absolute title of real estate, who bought without notice of a material man'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, 6 S.E. 915, 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.

Error from superior court, Clay county; J. M. Griggs, Judge.

Action by Ashmore & Morris against one Killingsworth. Judgment for plaintiffs. On levy of execution, T. J. Whatley interposed a claim. Verdict for claimant, and plaintiffs bring error. Affirmed.

The following is the official report:

The plaintiffs were material men, and as such furnished Killingsworth with materials to the amount of $70 for the improvement of his dwelling from January 16 to February 10, 1893. They filed and had recorded their lien within 30 days of the latter-named date, and foreclosed the same within 12 months. Upon the levy of their execution, a claim was interposed by Whatley. It appears that Killingsworth conveyed the realty upon which the material was used on February 18, 1893, to Adams, who conveyed the same on the same day to the claimant. The testimony was that claimant knew Killingsworth was making improvements on the property, but did not know the materials were being bought on credit from plaintiffs; knew he was buying some of them from plaintiffs, and had loaned him some money to pay plaintiffs with. Defendant was making the improvements at claimant's request, as he (claimant) expected to buy the property after they were made. He did not know that plaintiffs claimed a lien until long after the same had been recorded. The court directed a verdict for the claimant, and plaintiffs excepted.

J. R. Irwin, for plaintiffs in error.

C. Wilson, for defendant in error.

PER CURIAM.

Judgment affirmed.

ATKINSON, J., providentially absent, and not presiding.