Beall v. Buteer

• Decision Date: 31 January 1875
• Citation: 54 Ga. 43
• Parties: George C. Beall, trustee, plaintiff in error. v. Zed BuTEER, defendant in error.
• Court: Georgia Supreme Court

54 Ga. 43

George C. Beall, trustee, plaintiff in error. v. Zed BuTEER, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1875.)

Laborer\'s lien. Vendor and purchaser. New trial. Be" fore Judge Bartlett. Baldwin Superior Court. August Term, 1874.

Zed Butler sued out a laborer's lien against George C. Beall, and had it levied upon certain property as belonging to the defendant. A claim thereto was interposed by George C. Beall, as trustee for his wife.

Upon the trial the court charged the jury that if the property levied on belonged to the defendant at the completion of the plaintiff's contract as laborer, then it was subject to the plaintiff's fi. fa., even though the defendant sold it before the foreclosure of the plaintiff's lien to a bona fide purchaser for full value, without notice of said lien.

The jury found the property subject. A motion was made for a new trial and overruled. To this claimant excepted.

The evidence of fraud in the conveyance of the property in controversy by the defendant was so strong as to have required the verdict, even though the court had instructed the jury to the contrary of his charge as above set forth.

Crowford & Williamson, for plaintiff in error.

William McKinley; F. C. Furman, for defendant.

*TRIPPF, Judge.

1. The court charged the jury that if the property belonged to the defendant at the completion of the plaintiff's contract as a laborer, then it was subject to the plaintiff's fi. fa., even though the defendant sold it before the foreclosure of the plaintiff's lien, to a bona fide purchaser for full value, without notice of said lien. In Rose & Company v. Gray, 40 Georgia, 156, and in Frazer v. Jackson, 46 Ibid., 621, it was held that the bona fide purchaser of the absolute title of property without notice of an unforeclosed statutory lien, takes it divested of such lien. So in Clark & Cole v. Dobbins et al., 52 Georgia, 656, it was ruled that a warehouseman and factor who, without notice of any lien, makes advances on cotton stored with him, can claim reimbursement out of it against the lien of a landlord on whose land the cotton was made, or against the lien of a merchant who sold commercial fertilizers to the debtor. We think the same principle applies to the case of a laborer's lien. The argument to the contrary is that the lien of a laborer is given by the constitution, whilst in the other cases it is the creature of a statute. Grant that, and the consequence claimed by no...