Richardson v. Clayton

73 S.E. 654, 137 Ga. 477, 1912 Ga. LEXIS 56

• Court: Supreme Court of Georgia
• Decided: January 16, 1912
• Status: Published

Opinion

Ltjmpkin, J.

A contractor’s lien was foreclosed against a certain lot, and a special judgment obtained against it and a general judgment against . the man who was alleged to be the owner of it. The lien described the property as “part of lot No. 54 in the third district of White County, Georgia, containing two acres, more or less, and formerly owned by V. R. Hunter and purchased from him,” giving the metes and bounds thereof. The execution issued was levied on the land, the entry containing the same description. The person who was the defendant interposed a claim to the land as administrator of his deceased wife. The entry of levy recited that the defendant was in possession, and the claimant thereupon admitted a prima facie case and assumed the burden of proof. Held: (1) Under the recitals in the lien, the execution, ' and the levy, it was not necessary for the claimant to show title in Y. R. Hunter, the person recited to have been the former owner and from whom it was stated to have been purchased. (2) In such a case, where the claimant introduced a deed from such person to his intestate, proved that he was her husband and administrator, that they lived together in the house with their family until her death, that she left two children-as heirs beside her husband, and that the estate owed unpaid debts, and there was no conflicting evidence, a verdict finding the property subject was without evidence to support it.

(a) The mere proof by the contractor that he built the house under a contract with the defendant in fi. fa., and completed it in accordance with the contract; that the defendant paid him a part of the contract price, but failed to pay him the balance; and that the contractor informed the defendant that he would file a lien on the building, and the latter gave him a description of the property, was not sufficient to rebut the evidence recited in the preceding headnote, or to authorize the finding that the property was subject.

Judgment reversed.

All the Justices concur, ececept Hill, J., not presiding.

Claim.. Before Judge Eimsey. White superior court. December 7; 1910.

J. W. H. Underwood and H. H. Dean, for plaintiff'in error. G. 8. Kytle, contra.