New Winder Lumber Co. v. Guest
| Decision Date | 03 July 1936 |
| Docket Number | 11204. |
| Parties | NEW WINDER LUMBER CO. v. GUEST. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Under the Code of 1933, § 85-1004, a claim against a cotenant for rents and profits arising from the exclusive use of the estate will take precedence of a mortgage executed by him. Foreclosure of a mortgage creates a lien. Foreclosure of a materialman's lien does nothing more. The claim of the cotenant in this case takes precedence of the materialman's lien foreclosure.
2. The claimant in this case has a clear equitable right to have the interest of her cotenant in the joint estate, who admittedly has enjoyed the entire estate, charged with such indebtedness as accrued from his receiving more than his share of the profits of the estate in common, and he was also bound to repay to the claimant money expended by her or her agents in its protection. A "tenant in possession," as those words are used in the Code, may place a lien by any deliberate act which renders the joint property subject to seizure, such as a purchase of materials for improvements without the knowledge and consent of his cotenant. If he held out that he owned the entire interest in the property to be improved, the tenant in possession was the efficient cause which placed the lien on the property. "If one tenant in common receives more than his share of the rents and profits he is liable therefor as agent of bailiff of the other cotenant; and in equity the claim for such indebtedness is superior to liens placed on his interest by the tenant in possession receiving the profits."
3. Under the controlling ruling stated above, other assignments of error are without merit.
Error from Superior Court, Jackson County; B. P. Gaillard, Jr. Judge.
Proceeding by the New Winder Lumber Company against C. D. Holliday to foreclose a materialman's lien, wherein Mrs. H. W. Guest filed a claim to the land. To review a judgment for claimant plaintiff brings error.
Affirmed.
Clifford Pratt and R. H. Kimball, both of Winder, for plaintiff in error.
Roberts & Roberts, of Monroe, for defendant in error.
C. D. Holliday and his sister, Mrs. H. W. Guest, owned as tenants in common two tracts of real estate, one containing 64 acres and the other 8 acres, not adjoining. Holliday rented the land from his sister, and erected a dwelling house on the 8-acre tract, procuring certain material from New Winder Lumber Company, which caused to be timely recorded a claim of lien as to both tracts, the claim setting out the owners of the property as "Que Holliday and Marge Holliday Guest." Judgment of foreclosure was rendered on August 25, 1931, against C. D. Holliday generally, with a special lien on the land. Execution issued on the judgment on February 20, 1932, was levied on the property on March 7. On April 4 Mrs. Guest filed a claim to the land. On the trial she introduced a deed to herself and C. D. Holliday as common and equal owners of the land. She also introduced, over objection of the plaintiff in fi. fa., a security deed executed on August 24, 1932, and recorded on the following day, from C. D. Holliday to her, to secure a note for $755.22 of even date. She and her husband testified that the note given by Holliday represented the amount due as her share of the rents, taxes on the property paid by her in excess of her share, lumber sold from the land by Holliday, etc. The jury returned a verdict in favor of the claimant. A motion for new trial was overruled, and the plaintiff in fi. fa. excepted.
Holliday and his sister, Mrs. Guest, received their joint title and became tenants in common by reason of the fact that in the division of the estate of their father a deed conveying the premises involved was executed to them by the other children of their father. At the time the cotenancy was thus created, Holliday was living, or went to live, on the premises in question. At that time, and all the time since, Mrs. Guest has been absent from Jackson county where the land is situated, and has resided in Walton county. It is undisputed that Holliday paid Mrs. Guest rent for the first year of his cotenancy, and some cotton at intervals thereafter, which is certainly contradictory of any theory that his possession gave Mrs. Guest notice of any claim of ownership adverse, or that she had any notice of his adverse claim. Under the law she was entitled to rent, even though the occupancy of her cotenant was by her consent. The parties were tenants in common in 72 acres of land, but it consisted of two tracts, one of 64 acres and one of 8 acres, and these tracts are not contiguous, but are separated the one from the other by land owned by other persons. Upon the land in dispute at the time Holliday began his cotenancy (and, so far as appears from the record, up to the present time), there was a dwelling house suitable and sufficient for all the residential needs of the 72 acres of farm land. At some time before July 22, 1930, Holliday, having decided that he would build on the land a residence for himself more to his liking, and without advising with his cotenant or obtaining her agreement so far as appears from this record, proceeded to contract with the New Winder Lumber Company for certain finished material for the erection of this new domicile. It is not disputed that the New Winder Lumber Company furnished him this material. The company foreclosed its lien against Holliday alone, although when it was filed the claim of lien included also Mrs. Guest. She had no notice, so far as appears from the record, which would have authorized foreclosure against her. She lived in Monroe, Ga., and no second original or process was issued or served on her, so far as appears from the record. For several years Holliday had failed to pay taxes on the joint property, and these were paid by Mr. Guest as the agent of his wife. In the construction of the house Holliday used some of the timber cut from the property owned by himself and Mrs. Guest. But there was other timber of Mrs. Guest which Holliday cut and moved and sold, which did not go into the new house. According to the undisputed evidence, not less than 75,000 feet of timber was removed from this land, and Holliday sold all of it and received the proceeds. Mrs. Guest testified that she consented for him to cut any timber he desired, but of course she expected him to pay her for her one-half of it; and this testimony is not disputed.
The question is whether, in these circumstances, and in this case in equity, a contract of one cotenant obligating himself to pay for material in a house to be erected on the property of the cotenants, without the advice or consent of his cotenant which contract has been reduced to judgment, is superior to the equitable lien of the tenant in common for reasonable rents and for any money necessarily expended by her in the conservation of the joint property of the tenants in common. We are of the opinion that the judge correctly held that the fi. fa. of the plaintiff in error must yield to the superior equity of the cotenant. The Code of 1933, § 85-1004, provides for "accounting between cotenants for unequal share of rents or profits." It is declared that, "if one tenant in common receives more than his share of the rents and profits, he shall be liable therefor as agent or bailee of the other cotenant; and in equity the claim for such indebtedness shall be superior to liens placed on his interest by the tenant in possession receiving the profits." In section 37-301 it is declared that "equity jurisdiction over matters of account shall extend to * * * where the account is of a trust fund, or accounts between * * * tenants in common." We set forth both sections, because under section 85-1004 it is declared that a "tenant in common [who] receives more than his share of the rents and profits * * * shall be liable therefor as agent or bailee of the other cotenant," and in section 37-301 the same principle is considered where it is declared that equity jurisdiction extends to a trust fund or accounts between cotenants in common, thus showing that the Legislature had in mind the probability of cases similar to the one now before us. To further show the intention of the Legislature on the question now before us, the General Assembly was not content to conclude section 85-1004 without reference to three decisions of the Supreme Court embodied therein, in order to make completely clear the sense in which the section should be construed. The first decision cited by the General Assembly, clothed by law with authority to adopt it, was Shiels v. Stark, 14 Ga. 429, decided by this court at the January term, 1857. Judge Lumpkin, delivering the opinion, held that the principal legal question in the case was whether the lower court erred in charging the jury that, if Mr. Stark took possession with the assent of Mr. Shiels, and under an understanding with him, although he may have occupied all the property capable of producing rent, still he would not be liable to rent to his cotenant. Counsel for the plaintiff in error maintains a similar contention in this case. In ruling that the cotenant in possession is liable for rent although he held possession by the consent of his cotenant, Judge Lumpkin said: ...
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