Atlas Supply Co. Inc v. Mccurry

• Decision Date: 10 December 1930
• Docket Number: No. 600.,600.
• Citation: 199 N.C. 799,156 S.E. 91
• Court: North Carolina Supreme Court
• Parties: ATLAS SUPPLY CO., Inc. v. McCURRY et al.

156 S.E. 91

(199 N. C. 799)

ATLAS SUPPLY CO., Inc.

v.McCURRY et al.

No. 600.

Supreme Court of North Carolina.

Dec. 10, 1930.

Appeal from Superior Court, Buncombe County; MacRae, Special Judge.

Action by the Atlas Supply Company, Inc., against F. L. McCurry and others. From an adverse judgment, the plaintiff appeals.

No error.

This is a civil action brought by the plaintiff to enforce a lien against the lands of the defendants F. L. McCurry and wife, Emma J. McCurry, in which the plaintiff seeks to recover the sum of $815 for goods sold and delivered, consisting of plumbing material furnished by the plaintiff to the defendants McCurry for a house which was built by them on a vacant lot in the city of Asheville, N. C.

The plaintiff filed a lien for material furnished in the superior court of Buncombe county on the 31st day of July, 1929, and commenced its action to enforce said lien on the 7th day of November, 1929.

The issue and verdict were as follows: "Did the plaintiff file notice of lien upon the property of the defendants, F. L. McCurry and wife, within the time required by law? Answer: No."

The plaintiff assigned numerous errors, and appealed to the Supreme Court.

Joseph W. Little, of Asheville, for appellant.

Bernard, Williams & Wright, of Asheville, for appellee Ins. Co.

PER CURIAM.

The question involved: Did the plaintiff file notice of lien upon the property of the defendants F. L. McCurry and wife within the time required by law? We think not from the jury's finding.

C. S. § 2433: "Every building built, rebuilt, repaired or improved, together with the necessary lots on which such building is situated and every lot, farm or vessel, or any kind of property, real or personal, not herein enumerated, shall be subject to a lien for the payment of all debts contracted for work done on the same, or material furnished."

C. S. § 2470: "Notice of lien shall be filed as hereinbefore provided, except in those cases where a shorter time is prescribed, at any time within six months after the completion of the labor or the final furnishing of the materials, or the gathering of the crops."

The shorter time referred to is that set out in C. S. § 2444, but does not affect this controversy.

C. S. § 2474: "Action to enforce the lien created must be commenced in the court of a justice of the peace, and in the superior court, according to the jurisdiction thereof, within six months from the date of filing the notice of the lien. But if the debt is not due withinsix months, but becomes due within twelve months, suit may be brought or other proceedings instituted to enforce the lien in thirty days after it is due."

The matter has been recently fully discussed in King v. Elliott, 197 N. C. 93, 147 S. E. 701.

The only question in this controversy was to whether plaintiff had filed its lien against the property of F. L. McCurry and wife Emma McCurry, within six months from the final furnishing of the material. Plaintiff contended that it had "filed a lien in the Superior Court of Buncombe County, recorded in Lien Book 9, page 65, on the 31st day of July, 1929. The deed of trust to S. G. Bernard, Trustee, was made on the 27th day of March, 1929, and recorded April 9th, 1929. The deed of trust to G. D. Carter, Trustee, was made and recorded after the Bernard deed of trust. In...