Reppard, Snedeker & Co. v. Morrison , 120 Ga. 28 ( 1904 )

Lamas, J.

The verdict settles the conflict in the evidence, and, under the charge of the court, is to be construed as a finding that the owner did not expressly or impliedly consent to the tenant’s making the contract under which the material was furnished by the plaintiffs for the improvement of the real estate. Under the Code of 1868, § 1959, a mechanic under such circumstances might have been entitled to a lien, not against the real estate, but against the improvement itself, “ without regard to the title.” Gaskill v. Davis, 63 Ga. 645; Cooper v. Jackson, 107 Ga. 256. But that provision was omitted from the lien act of 1873 (Civil Code, §2801); and while one having an interest in land may subject such interest to a lien for improvements placed thereon at his request, there is nothing in our statute which modifies the general principle that the title of the true owner can not be encumbered by a lien without some act on his part signifying his assent. Harmon v. Allen, 11 Ga. 45 ; Callaway v. Freeman, 29 Ga. 408; Walker v. Burt, 57 Ga. 21 (2); Powers v. Armstrong, 19 Ga. 427; Rice v. Warren, 91 Ga. 759 (2).

This case illustrates the inherent justice of such a rule. Repairs or additions might be made at the direction of a disseisor, trespasser, or tenant, but, while costly, instead of being improvements, they might, as here, positively detract from the value of the estate. Or they might even be improvements and add to the value of the property, and yet might not be of a character which the owner desired placed on his land. If the real estate could be subjected to a lien under such circumstances, he might be called upon to pay for that which the next week he would cause to be torn down and removed. It frequently happens that the lot and the new house sell for less than the cost of the building, and it is unfortunately true that one is often improved out of his estate. But before this can be done, he must at least consent to the making of the disastrous improvement. In view of the finding of the jury we are not called upon to decide how far knowledge of the making of the contract before the work began, or knowledge acquired during the progress of the work, would amount to that consent authorizing the foreclosure of a lien against the true owner.

Judgment affirmed.

All the Justices concur.