Glover Linoleum & Carpet Co. v. Tutterow

Court of Appeals of Georgia

Glover Linoleum & Carpet Co. v. Tutterow

287 S.E.2d 348, 160 Ga. App. 410, 1981 Ga. App. LEXIS 3133

CourtCourt of Appeals of Georgia

DecidedNovember 17, 1981

Docket62798; 62799

StatusPublished

Cited by1 cases

This text of 287 S.E.2d 348 (Glover Linoleum & Carpet Co. v. Tutterow) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Glover Linoleum & Carpet Co. v. Tutterow, 287 S.E.2d 348, 160 Ga. App. 410, 1981 Ga. App. LEXIS 3133 (Ga. Ct. App. 1981).

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Opinion

Deen, Presiding Judge.

The Tutterows purchased their newly constructed residence from Shaw Builders, Inc., the builder. Carpeting and vinyl flooring were ordered for the house by the builder and installed between [411]*411December 21,1979, and January 2,1980. On January 29, a warranty deed from the builder to the Tutterows was filed for record. Appellant’s claim of lien was not filed until February 13,1980. There is no evidence demanding a finding that the purchasers were aware of the unpaid account, and the court found that they were not.

Decided November 17, 1981. Danny C. Bailey, for appellant. J. Tyler Tippett, Walter H. Hotz, for appellees (case no. 62798). Glenn H. Strother, for appellees (case no. 62799).

The case represents a simple contest of priorities in which the defendants, whose deed predates the filing of the claim of lien, must necessarily prevail. “In a contest between a materialman’s lien which was recorded within the time prescribed by law, and a security deed executed by the common debtor [or, as here, a warranty deed executed by the owner] after the material was furnished, but before the record of the materialman’s lien, where it affirmatively appears that the . . . deed was upon a valuable consideration, and there is nothing to show actual knowledge to the grantee, or knowledge of any fact sufficient to put him upon inquiry as to the existence of the materialman’s lien, the presumption arises that the grantee in the... deed is a purchaser without notice.” Millener v. Wellhouse, 148 Ga. 275 (1) (96 SE 566) (1918). As previously stated, the court found no actual notice of the lien on the part of the purchasers, and we cannot say that, where the delivery and installation occurred three or four weeks prior to the recordation of the deed, the evidence demands a finding that the defendants should have known of the unpaid bill. The case is thus distinguishable from West Lumber Co. v. Gignilliat, 77 Ga. App. 336 (48 SE2d 688) (1948).

A substantially identical state of facts appears in the companion case in which the Yanceys also purchased from the builder, Shaw Builders, Inc., who failed to pay the appellant materialman. It is accordingly controlled by case no. 62798.

Judgments affirmed in case nos. 62798 and' 62799.

Banke and Carley, JJ., concur.

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Deen, Presiding Judge.

The Tutterows purchased their newly constructed residence from Shaw Builders, Inc., the builder. Carpeting and vinyl flooring were ordered for the house by the builder and installed between [411]*411December 21,1979, and January 2,1980. On January 29, a warranty deed from the builder to the Tutterows was filed for record. Appellant’s claim of lien was not filed until February 13,1980. There is no evidence demanding a finding that the purchasers were aware of the unpaid account, and the court found that they were not.

Decided November 17, 1981. Danny C. Bailey, for appellant. J. Tyler Tippett, Walter H. Hotz, for appellees (case no. 62798). Glenn H. Strother, for appellees (case no. 62799).

The case represents a simple contest of priorities in which the defendants, whose deed predates the filing of the claim of lien, must necessarily prevail. “In a contest between a materialman’s lien which was recorded within the time prescribed by law, and a security deed executed by the common debtor [or, as here, a warranty deed executed by the owner] after the material was furnished, but before the record of the materialman’s lien, where it affirmatively appears that the . . . deed was upon a valuable consideration, and there is nothing to show actual knowledge to the grantee, or knowledge of any fact sufficient to put him upon inquiry as to the existence of the materialman’s lien, the presumption arises that the grantee in the... deed is a purchaser without notice.” Millener v. Wellhouse, 148 Ga. 275 (1) (96 SE 566) (1918). As previously stated, the court found no actual notice of the lien on the part of the purchasers, and we cannot say that, where the delivery and installation occurred three or four weeks prior to the recordation of the deed, the evidence demands a finding that the defendants should have known of the unpaid bill. The case is thus distinguishable from West Lumber Co. v. Gignilliat, 77 Ga. App. 336 (48 SE2d 688) (1948).

A substantially identical state of facts appears in the companion case in which the Yanceys also purchased from the builder, Shaw Builders, Inc., who failed to pay the appellant materialman. It is accordingly controlled by case no. 62798.

Judgments affirmed in case nos. 62798 and' 62799.

Banke and Carley, JJ., concur.

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287 S.E.2d 348, 160 Ga. App. 410, 1981 Ga. App. LEXIS 3133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/glover-linoleum-carpet-co-v-tutterow-gactapp-1981.

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