Waters v. Dixie Lumber & Mfg. Co.

• Decision Date: 04 March 1899
• Citation: 32 S.E. 636,106 Ga. 592
• Parties: WATERS v. DIXIE LUMBER & MANUFACTURING CO.
• Court: Georgia Supreme Court

32 S.E. 636

106 Ga. 592

WATERS v. DIXIE LUMBER & MANUFACTURING CO.

Supreme Court of Georgia

March 4, 1899

Syllabus by the Court.

When the lien of a material man has, under the terms of the statute, become fixed and secured, such lien is then a vested right, and no subsequent repeal or modification of the act under which it became fixed can destroy or modify such right.

Error from city court of Atlanta; H. M. Reid, Judge.

Action by the Dixie Lumber & Manufacturing Company against Joseph C Waters and one Cochran. Judgment for plaintiff, and defendant Waters brings error. Affirmed.

Mayson & Hill, for plaintiff in error.

J. F Daniel and Rosser & Carter, for defendant in error.

LITTLE J.

The Dixie Lumber & Manufacturing Company, on August 11, 1896 filed its petition against Cochran and Waters, alleging that it had furnished and delivered to Cochran, who had contracted to build a house for Waters, a bill of lumber and other building material to the amount of $585.08, which was delivered on the land of Waters, and was used in building the house and improving said land, giving the location of it; that the material was furnished August 12, 1895; that it had duly filed and had recorded a material man's lien on the property; that it had taken no other security for the debt; that within the prescribed times it had served Waters with written notice, as required by the statute, of the claim of lien and filing the same. It alleges that this suit is brought to enforce such lien within 12 months from the completion of the contract. It prays a general judgment against Cochran for $141.79, with interest; that its lien be set up by judgment against the property improved for the amount allowed by law. To the petition was attached a copy of the notice served upon Waters, on August 26, 1895. There was also attached a copy of the record of the claim of lien filed August 26, 1895, and an itemized bill of the material furnished. By amendment the plaintiff alleged that the contract price for building the house for Waters by Cochran was $1,800. On the trial, defendant Waters excepted to the charge of the court given in the following language: "Now, the plaintiff contends as against Waters that this material was used in the improvement of the premises described in the declaration, and that the premises were the property of Waters, and that the amount sued for is within the twenty-five per cent. which it alleges the owner, Waters, is liable to pay. If this is true, and the plaintiff has established its lien, it would have a right to assert its lien against Waters for the amount sued for." The basis of the exception to the charge is that the law given in charge had been repealed, and another remedy enacted, and plaintiff could only enforce his claim according to the remedy allowed by the law at the time of the trial. An exception to another part of the charge was made, based on the same ground. The verdict was against Cochran for $141.79, with interest and costs, and that a special lien to this amount should exist on the real estate of Waters.

The single question made by the record is whether the lien of material men must be enforced against the real estate of the owner under the terms of the statute as it existed at the time the lumber and material were furnished, or under the provisions of the amending statute which was in force at the time of the trial. According to the petition, the provisions of the act of 1893 were in force at the time the lumber and material were furnished. This act provides that the lien of material men shall attach upon the real estate improved as against the true owner for 25 per cent. of the contract price of the material furnished for the improvement of the real estate. Acts 1893, p. 34. By the provisions of the act approved December 16, 1895, which was amendatory of the act of 1893, the lien should attach upon the real estate as against the owner to the extent of not more than 25 per cent. of the contract price agreed to be paid by the owner to the contractor. By the act approved December 18, 1897, which was in force at the time of the trial, it was provided that the lien should not attach for a sum greater than the balance that the owner might be indebted to the person having the contract at the time of the service of the notice. The provisions of these various acts being different, the plaintiff in error contends that the statute creating a lien in favor of material men is remedial in its nature; that no rights, by such statute, become vested in the person furnishing the materials for the improvement of real estate; that subsequent statutes changing the lien are operative on liens acquired prior to their passage, and the rights of material men are, therefore, to be decided by the provisions of the statute in force at the time of the trial. The material question, therefore, to be considered is whether the provisions which create liens in favor of one who furnishes material for the improvement of real estate are statutes which affect the remedy alone, and may, therefore, be retrospective, or whether they vest rights in the lienor, which cannot be affected by a subsequent change in the statute. The question is one not without difficulty, and we find many adjudicated cases which make a contrary ruling. In general terms, the lien of a material man for furnishing lumber and other articles which enter into the construction of houses or other improvements made upon land is a claim created by statute for the purpose of securing priority of payment for the price of the material furnished in erecting such houses, or in making other improvement on the land. It has been said to be a peculiar, particular, and special remedy given by statute, founded and circumscribed by the terms of its own creation. Copeland v. Kehoe, 67 Ala. 594. ...