Reaves v. Meredeth , 123 Ga. 444 ( 1905 )

Evans, J.

(After stating the facts.) 1. The controlling issue in the case was whether or not Mrs. Meredeth, not her husband, was the purchaser of the lot from C. J. Kendall. It appears that on January 15, 1896, Kendall deeded the land in controversy to W. J. Meredeth, though the deed was not recorded till October 23, 1900, and that on March 13, 1896, Meredeth conveyed the land to his wife, this latter conveyance being recorded on July 15th of the same year. The plaintiff introduced testimony to the following effect, in explanation of how she acquired title: She was the owner of several cows, and authorized her husband to trade them for a suitable lot in Moultrie, saying to him that she wanted a home, and that a poor home was better than none at all. Her husband concluded a trade with Kendall for the- lot in dispute, telling him the cows belonged to Mrs. Meredeth and she wanted the deed to the lot made to her, as she was also to furnish the sum of money agreed on as constituting, in addition to the cows, the consideration of the purchase. By the mistake of the lawyer who prepared the deed, Meredeth was therein named as the vendee, and for that reason he objected to the deed, but took it home and read it over to his wife. She said she would not have it, and told her husband to take it back to Kendall and have him execute a conveyance to- her. Meredeth undertook to carry out his wife’s instructions, but the lawyer told him he could make a deed to his wife, and prepared the deed to her which he signed. She furnished the whole of the consideration for the sale of the lot.

The defendant introduced Kendall as a witness. His recollection was not clear as to what was said when the trade was made as to the deed being made to Mrs. Meredeth, but he understood Meredeth to say the deed should be made to him. Witness was informed by Meredeth that the cows belonged to his wife; he paid ten dollars at the beginning of the trade, and gave his note for five dollars, saying nothing as to whose money it was; when the deed was delivered to him, nothing was said about it not having been made to his wife, ■ but several months afterwards he brought it back to the witness.

In view of this evidence, a finding that the lot was really bought and paid for by Mrs. Meredeth was fully warranted. In the further discussion of the case we will therefore treat her as the owner of the premises, giving effect to the finding of the jury upon this issue.

2. The materialman’s lien filed by Turner was asserted and foreclosed against “ Jackson ” Meredeth as the owner of the land upon .which the improvements were made. Mrs. Meredeth was not a party to the foreclosure proceeding, and therefore was not bound by the judgment therein rendered. On March 13, 1896, not only was she the equitable owner of the land, but she at that time held the legal title thereto. It does not appear when' the materials with which to build the house were furnished by Turner, but it was some time prior to June 6, 1896, the date on which he filed his lien. His right to assert a lien on the premises improved was therefore governed by the law as it stood at that time (Civil Code, § 2801), and not by the act of December 19, 1899 (Acts of 1899, p. 33), amending that section. As Mrs. Meredeth was the “ true owner ” of the premises, statutory notice of the assertion of a lien should have been served upon her, as such true owner, and the lien should have been filed and enforced against her, not against her husband. Porter v. Wilder, 62 Ga. 521, 527; Gross v. Butler, 72 Ga. 187; Bullard v. Dudley, 101 Ga. 299. Such a lien being in derogation of common-law right, the statute creating it is to be strictly construed, and the provisions of the statute are to be strictly complied with. Gross v. Butler, supra; Seeman v. Schultze, 100 Ga. 603.

3. It only remains to inquire whether or not Mrs. Meredeth is estopped from' asserting ownership of the property. Though she may, as owner, have assisted Wood in defending the dispossessory warrant sued out against him, she was not a party to that proceeding, and the decision therein rendered in favor of Mrs. Reaves in no way affected the question as to whether she or Mrs. Meredeth was the real owner of the premises. Doubtless that decision was prat on the ground that Wood could not dispute the title of his landlord; but be this as it may, there is no estoppel by judgment as against Mrs. Meredeth, she not having been a party to the cáse.. Nor, under the evidence submitted, was she estopped by her conduct, so far as Turner, the materialman, was concerned. Although she knew that improvements were being made on her land by her husband, she was under no legal duty to put Turner on notice that she was the owner of the premises. Rice v. Warren, 91 Ga. 759. He could not complain that she failed to sooner record her deed; for, as to him, she was under no obligation to do so. She did nothing and said nothing to mislead him into the belief that her husband owned the land. The deed from Kendall to her husband was not put on the record until 1900; so Turner could not have relied on the record title being in Meredeth; and it does not Appear that he made to Turner any representations as to the ownership of the property, either at the time the materials were purchased or subsequently. Turner evidently took it for granted, that Meredeth owned the land, without making any inquiries to find out what was the truth in this regard. No materialman’s lien against the land has ever been asserted against it as the property of Mrs. Meredetb, the true owner; the judgment in favor of Turner was binding only upon her husband, and the effect of the sale had' thereunder was simply to divest whatever interest he had in the premises. The purchaser, under the doctrine of caveat emptor, can claim to occupy no better situation, relatively to Mrs. Meredetb, than that occupied by Turner, the materialman, who failed to properly pursue his statutory remedy. Accordingly, the court did not err ’ in charging the jury that if they believed the land really belonged to her, and the deed to her from her husband was executed before the judgment against him was rendered, then she would be entitled to recover. As already'pointed out, she held the legal title to the premises long before Turner attempted to assert his lien.

Judgment on main bill of exceptions affirmed; cross-bill of exceptions dismissed. All the Justices concur, exeept Simmons, G. J., absent.