Southern Pole Bldgs., Inc. v. Williams, DIXIE-MESSER

• Decision Date: 24 April 1986
• Docket Number: No. 0766,DIXIE-MESSER,0766
• Citation: 347 S.E.2d 121,289 S.C. 521
• Parties: SOUTHERN POLE BUILDINGS, INC., a South Carolina Corporation, Plaintiff, v. Don WILLIAMS, W. Dennis Smith, Peterson Lumber Company, Inc., and Ray D. Hawkins, Defendants, Ray D. HAWKINS, d/b/a Greenville Tile Installation Company, Plaintiff, v. Donald B. WILLIAMS, W. Dennis Smith, Woodruff Federal Savings and Loan Association, Peterson Lumber Company, Inc., and Southern Pole Buildings, Inc., Defendants,MIRROR AND GLASS, INC., Plaintiff, v. Virginia W. WILLIAMS, Donald B. Williams, Ray D. Hawkins, d/b/a Hawkins Tile Installation Company, W. Dennis Smith, Woodruff Federal Savings and Loan Association, Peterson Lumber Company, Inc., and Southern Pole Buildings, Inc., Defendants, of whom W. Dennis Smith is the Appellant, and Southern Pole Buildings, Inc., a South Carolina Corporation, and Dixie-Messer Mirror and Glass, Inc., are Respondents. Appeal of W. Dennis SMITH. . Heard
• Court: South Carolina Court of Appeals

Page 121

347 S.E.2d 121

289 S.C. 521

SOUTHERN POLE BUILDINGS, INC., a South Carolina Corporation, Plaintiff, v. Don WILLIAMS, W. Dennis Smith, Peterson Lumber Company, Inc., and Ray D. Hawkins, Defendants, Ray D. HAWKINS, d/b/a Greenville Tile Installation Company, Plaintiff, v. Donald B. WILLIAMS, W. Dennis Smith, Woodruff Federal

Savings and Loan Association, Peterson Lumber

Company, Inc., and Southern Pole

Buildings, Inc., Defendants, DIXIE-MESSER MIRROR AND GLASS, INC., Plaintiff, v. Virginia W. WILLIAMS, Donald B. Williams, Ray D. Hawkins, d/b/a Hawkins Tile Installation Company, W. Dennis Smith,

Woodruff Federal Savings and Loan Association, Peterson

Lumber Company, Inc., and Southern Pole Buildings, Inc., Defendants,

of whom W. Dennis Smith is the Appellant,

and

Southern Pole Buildings, Inc., a South Carolina Corporation,

and Dixie-Messer Mirror and Glass, Inc., are Respondents.

Appeal of W. Dennis SMITH.

No. 0766.

Court of Appeals of South Carolina.

Heard April 24, 1986.

Decided Aug. 4, 1986.

J.D. Todd, Jr. of Leatherwood, Walker, Todd & Mann, Greenville and Claude P. Hudson of Hawkins, Ellis & Hudson, Greer, for appellants.

H. Samuel Stilwell, G. Maurice Ashmore of Ashmore, Stilwell & Hunter, Greenville, for respondents Southern Pole Bldgs., Inc. and Dixie-Messer Mirror & Glass, Inc.

William J. Barnes, Greenville, for defendant Peterson Lumber Co., Inc.

CURETON, Judge:

Appellant W. Dennis Smith entered into a contract of sale to sell real estate to Virginia W. Williams. He appeals an order of the trial court permitting foreclosure of several mechanics liens filed against the property for labor and materials furnished to make improvements to the property, pursuant to Section 29-5-10 of the Code of Laws of South Carolina, 1976. We affirm as modified and remand.

In July 1981, Smith entered into a written contract to sell the tract in question to his cousin, Mrs. Williams. The unrecorded contract provided for monthly installment payments. Smith testified that the contract was no longer in effect because Mrs. Williams ceased making payments on the property in 1983 and, under the terms of the contract, all her rights of ownership were forfeited. Mrs. Williams later signed a document relinquishing to Smith her interest in the property.

Respondents Southern Pole Buildings, Inc. (Southern Pole) and Dixie-Messer Mirror and Glass, Inc. (Dixie-Messer), ¹ ] at the request of Donald Williams, husband of Virginia Williams, furnished labor and materials that were used in the construction of a barn built by Mr. Williams on the property. Neither supplier contacted either Mrs. Williams or Smith personally prior to supplying the labor and materials. The testimony is contradictory as to whether Mrs. Williams consented to her husband making the improvements. Mrs. Williams testified that she did not want the barn built and that her husband built it over her objections. On the other hand, Mr. Williams testified that the building of the barn was a joint venture between him and his wife. The evidence showed that at the time the materials were furnished, the parties lived together as man and wife on the property, but that they later separated. The trial judge found that the construction of the barn was a joint venture.

A proceeding for the enforcement of a mechanics lien is legal in nature and thus our scope of review is limited to ascertaining whether there is any evidence to sustain the ruling of the trial judge. Willard v. Finch, 123 S.C. 56, 116 S.E. 96 (1923).

Smith contends first that Mr. and Mrs. Williams had no legal or equitable interest in the property to which a mechanics lien could attach because the contract of sale provided that upon a default in the monthly installment payments, all prior payments would be applied as rent and the purchaser's rights under the contract would terminate. Moreover, he argues Mrs. Williams has relinquished any equitable interest she may have had in the property. We reject this contention. While the record is not clear as to the precise date of default in payments or when Mrs. Williams released her interest in the property to Smith, the record shows that any default in the payment of installments occurred after the mechanics liens were filed. Thus, a default in the payments and the subsequent release by Mrs. Williams of her interest in the property to Smith after the labor and materials were furnished cannot affect the vested mechanics lien rights that arose inchoate when the materials and labor were furnished. See Shelley Construction Co. v. Sea Garden Homes, Inc., 287 S.C. 24, 336 S.E.2d 488 (Ct.App.1985).

Smith next argues that Southern Pole and Dixie-Messer should have been required to obtain his consent to furnish the labor and materials...