Ford v. Wilson & Co. , 85 Ga. 109 ( 1890 )

Bleckley, Chief Justice.

1. The plea of the defendant, Mrs. Ford, that she was not the owner of the house and lot and had no title thereto, but that the same belonged to Annie Ford, was properly stricken 021 demurrer. Amiie Ford was no party to this case, and her title or claim, whatever it may be, will not be affected by the judgment. Her interest may well be left to her own keeping. With inspect to it, Mrs. Ford is a mere volunteer. She cannot be heard to set up the rights of Annie Ford in the premises upon which the lien is claimed. Porter v. Wilder, 62 Ga. 521.

2. The recorded claim of lien was properly admitted in evidence, the form and la2iguage of the claim being in substa2ice as prescribed in section 1980 of the code. The objection that it did not show on its face a compliance by the plaintiffs with their contract in regard to the sale and delivery of the building materials, is answered by saying that no such requirement is made by the statute. Whilst the claimant of such a lien is required to show compliance with his contract Í21 oi’der to enforce his lien, the fact of compliance is 2iot a matter which must appear on the face of the claim of lien as recorded. The objection that the defendant is not alleged in the claim to be the owner of the house and lot, is 2net by saying that the claim does so allege ; the property being prescribed as the house and premises “of Eugenia O. Ford,” this being followed by a full and particular description of the.location and dimensions of the lot, specifying its number and the street 021 which it is situate.

3. The acceptance by the plaintiffs of the note of a third person (Mrs Handy) as collateral security for the price of the building matei’ials furnished to defendant, constituted no waiver by the plaintiffs of their lien as material-men; and the court did not err in omitting to submit to the jury any question as to such waiver. The amount of the collateral note was very much less than that of the plaintiffs account, and there is no trace in the evidence of any express waiver of. lien, or of any agreement touching the existence or non-existence of such lien. It may be that mechanics who have taken personal security thereby waive their lien (Code, §1979); bat even this is not certain, for the last act on the subject (Acts of 1873, p. 42) says nothing of personal security. But it is certain that as to material-men there is no statutory intimation that they are not to have a lien as well when they take personal security as when they take none. Their lien was first allowed by the act of 1872 (Acts of 1872, p. 47), which says nothing of personal security; and the act now in force as to them is that of 1873, supra, which also says nothing of personal security. The doctrine which prevails in some States (see Kneeland on Mechanics’ Liens, §§139, 139a), that a waiver of a statutory lien will result by implication from the acceptance of additional security, seems to us pnsound. A better view of the subject is that taken by Chief Justice Tilghman in Hinchman v. Lybrand, 14 Serg. & Rawle, 32; and by the Supreme Court of Alabama in Montandon v. Deas, 14 Ala. 33 (s. c. 48 Am. Dec. 84). In the former of these cases there was a guarantor; and in the latter, notes of a third person were taken as collateral. In both cases it was held that the lien was not waived. This, we think, is the true law, though there is much authority having a contrary, tendency. See notes to Goble v. Gale, 41 Am. Dec. 221 et seq. Our legislature having given material-men a lien in unqualified and unconditional terms, with no exception or reservation as to whether they take other security or not, we think it would be doing violence to the statute to engraft upon it a restriction which the legislature either overlooked, or thought proper not to adopt. No doubt the lien can be waived, either by express contract or by acts equivalent thereto; but we are confident that no waiver results by implication from the mere acceptance of cumulative security.

4. Whether the verdict was right or wrong under the evidence submitted, is not for consideration upon the bill of exceptions before us, there being no motion made for a new trial. This point’has been so frequently ruled, that it is rather surprising we- have to deal with it over again at this late day.

Judgment affirmed.