Editor's notes.

-.

The pre-1984 annotations below were taken from decisions decided under former § 44-14-362. See editor's note, above.

Constitutionality.

- The materialmen's lien statutes do not deprive property owners of a significant property interest without notice and hearing; they serve an important public interest and the statutes are not unconstitutional. Tucker Door & Trim Corp. v. Fifteenth St. Co., 235 Ga. 727, 221 S.E.2d 433 (1975).

History of section.

- This section originated in an Act of the General Assembly passed in 1841. Kwilecki v. Young, 180 Ga. 602, 180 S.E. 137 (1935).

Historical requirements.

- Prior to the passage of the amendments of 1941 and 1952 to former paragraph (3) of this section it was, without exception, a condition precedent to the enforcement of a materialman's lien against the property of the owner, for materials furnished a contractor, that the plaintiff materialman obtain a valid judgment against the contractor for the price of the materials under the decisions if the contractor had been adjudged a bankrupt, so that no judgment in personam could be had against him, the liability of the contractor was annulled and the materialman's lien could not thereafter be foreclosed against the property of the owner. Victory Lumber Co. v. Ellison, 95 Ga. App. 105, 97 S.E.2d 334 (1957).

Intent.

- It was the intention of the General Assembly to deal only with the subject matter of lien and mortgage establishment and foreclosure as affecting subcontractors and persons claiming against or under subcontractors. Athens Elec. Supply Co. v. Delta Oil, Inc., 101 Ga. App. 515, 114 S.E.2d 289 (1960).

It was the intention of the General Assembly that when an owner of property entered into a contract with contractors to improve the real estate of the owner, that the owner of the real estate would have the responsibility of contracting with reliable contractors for such improvements and if such owner failed to do so and the contractors would not be served because they were beyond the jurisdiction of the court that it would not be necessary to do the impossible and bring action against such contractors within 12 months before subjecting the property improved to a lien for the amount of such improvements. Cowart v. Reeves, 80 Ga. App. 161, 55 S.E.2d 911 (1949).

The purpose of the materialman's lien statutes in every state is, in substance, the same: to give the furnisher of labor and material a claim upon the owner, to compel the owner at the owner's peril to withhold final payment until the owner has received assurance from the contractor that the owner has paid all material and labor claims, which are or which may be perfected into liens. Gignilliat v. West Lumber Co., 80 Ga. App. 652, 56 S.E.2d 841 (1949); Scott v. Williams, 111 Ga. App. 735, 143 S.E.2d 16 (1965).

Section strictly construed.

- If there are degrees of strict construction, certainly an Act of the General Assembly which has for its purpose the giving of a lien upon property of one in favor of the creditor of another should be dealt with according to the strictest rules of strict construction. It is well established that the statute with reference to establishing liens against real estate for improvements made must be strictly construed. Cowart v. Reeves, 80 Ga. App. 161, 55 S.E.2d 911 (1949).

This section is in derogation of the common law, and must be construed strictly. Before the lien which it creates in favor of certain persons, under certain circumstances, which overrides all other liens, can be allowed, the party must show compliance with all the conditions, and bring himself within all the requirements and limitations of this section. Kwilecki v. Young, 180 Ga. 602, 180 S.E. 137 (1935).

The liens of laborers and materialmen do not rest upon contract, but upon the law which gives to them liens of labor performed and material furnished in the improvement of real estate. These liens are creatures of statute and must be strictly construed as they relate to classes of persons who may claim a lien and the improvements and kind of property on which it may be obtained. Atlanta Jewish Community Ctr., Inc. v. Tom Barrow Co., 130 Ga. App. 608, 203 S.E.2d 921 (1974).

Lien statutes, being in derogation of the common law, must be strictly construed. Fowler v. Roxboro Homes, Inc., 98 Ga. App. 829, 107 S.E.2d 285 (1959).

Strict compliance required.

- O.C.G.A. § 44-14-361 and this section provide a method of effecting a lien for materials furnished for the purpose of improving real estate, and strict compliance with these sections is required. King v. Rutledge, 208 Ga. 172, 65 S.E.2d 801 (1951).

When cancellation required.

- Former subsection (a) only requires a cancellation of the preliminary notice of lien by the lien claimant if the lien claimant has received final payment after all labor services and materials have been furnished. Therefore, where subcontractor contended that it did not receive any such final payment, it would not have been required to cancel a preliminary notice of lien if it had filed one. Wachovia Bank v. American Bldg. Consultants, Inc., 138 Bankr. 1015 (Bankr. N.D. Ga. 1992).

Only way that liens against personalty may be created is in accordance with O.C.G.A. § 44-14-362. Meders v. Wirchball, 83 Ga. App. 408, 63 S.E.2d 674 (1951).

Difference between liens on money and liens on land.

- The money, as it becomes due, is charged with a lien as against the contractor, in favor of the subcontractor, materialmen, and laborers. On the other hand, the land is charged with a lien as against the owner, for the purpose of securing the payment of the contract price, and creating the fund out of which the subcontractors and laborers may be paid. Scott v. Williams, 111 Ga. App. 735, 143 S.E.2d 16 (1965).

Statutory requirements are mere conditions precedent to asserting lien.

- Recording of the lien within three months from the date when the material was furnished, and the institution of an action within one year from that date, merely preserves the lien and the right to establish it against the property. Marietta Baptist Tabernacle v. Tomberlin Assocs., 576 F.2d 1237 (5th Cir. 1978).

Requirements for preservation or perfection of materialman's lien.

- To make good or perfect the materialman's lien specified in O.C.G.A. § 44-14-361, it is essential, under this section, not only that there be (1) a substantial compliance by the alleged lienor with the contract, and (2) the recording of the claim of lien within three months, but, (3) that an action for recovery of the amount of the claim be commenced within 12 months from the time the same became due. Kwilecki v. Young, 180 Ga. 602, 180 S.E. 137 (1935); Carter-Moss Lumber Co. v. Short, 66 Ga. App. 330, 18 S.E.2d 61 (1941).

In order to preserve a materialman's lien, it is essential to show that (1) the plaintiff completed the contract, (2) the plaintiff filed for record the claim of lien within three months after completion of the contract, and (3) the plaintiff brought suit to recover the amount of the claim within 12 months after the debt became due. Old Stone Mtg. & Realty Trust v. New Ga. Plumbing, Inc., 140 Ga. App. 686, 231 S.E.2d 785 (1976), aff'd, 239 Ga. 345, 236 S.E.2d 592 (1977).

In giving to the materialman a lien, the statute expressly states that in order to make good on the lien the materialman must both record and foreclose within the statutory periods. The record of the lien in time is no more essential to its creation than its foreclosure in time, and the lien comes into potential existence only when the statute is satisfied. Kwilecki v. Young, 180 Ga. 602, 180 S.E. 137 (1935).

Materialman's lien only inchoate until perfected by judgment.

- The lien provided for in favor of a materialman is not absolute, but must be completed, made good, or perfected in accordance with the provisions of O.C.G.A. § 44-14-362. It is only inchoate or incipient until a judgment finally perfects it. Carter-Moss Lumber Co. v. Short, 66 Ga. App. 330, 18 S.E.2d 61 (1941).

Approval of engineer condition precedent to foreclosure if in contract.

- A stipulation in a building contract to the effect that the compensation of a builder shall be due and payable only on the certificate of a named engineer is a condition precedent to the foreclosure of the contractor's lien. Southern Mfg. Co. v. R.L. Moss Mfg. Co., 13 Ga. App. 847, 81 S.E. 263 (1913).

Uses of property permitted by materialman's lien statutes despite lien.

- The materialmen's lien statutes do not deprive property owners of a significant property interest without notice and hearing. Although some use of property may be curtailed, the owner is not legally prevented from selling, encumbering, renting or otherwise dealing with the property as the owner chooses. Fayetteville-85 Assocs. v. Samas, Inc., 241 Ga. 119, 243 S.E.2d 887 (1978).

Foreclosure proceedings for condominium assessments.

- It is clear that the foreclosure proceedings set forth in O.C.G.A. § 44-3-109 are simplified, and distinct from the proceedings for the creation and enforcement of other types of liens. Propes v. Stonington Homeowners Ass'n, 149 Ga. App. 135, 253 S.E.2d 813 (1979).

The sole requirements for creation of the lien for assessments are contained in O.C.G.A. § 44-3-109, and it is only the actual foreclosure proceedings which must be "in the same manner as other liens for the improvement of real property." Thus, the judgment and execution of the lien must be entered by the appropriate superior court. Propes v. Stonington Homeowners Ass'n, 149 Ga. App. 135, 253 S.E.2d 813 (1979).

Materials must be used in improvement for materialman's claim to arise.

- Where a materialman delivered materials to the job site and the subcontractor to whom the materials were consigned did not keep them, but the materials were returned to the materialman and placed in the materialman's stock, the materialman has no claim of lien for such materials as against the owner of the property being improved, as it is necessary that the materials be used in the improvement itself for the benefit of the owner before such materials are lienable. Downtowner of Atlanta, Inc. v. Dunham-Bush, Inc., 120 Ga. App. 342, 170 S.E.2d 590 (1969).

Materialman cannot recover against landowner on basis of unjust enrichment instead of remedy under section.

- The purpose of this section is to give to materialmen a lien, and the mode for enforcing the lien is also prescribed, and the object of this section would be frustrated and virtually defeated if a materialman who failed to pursue a statutory remedy was allowed to recover against the landowner under a concept of unjust enrichment. Lynn v. Miller Lumber Co., 146 Ga. App. 230, 246 S.E.2d 137 (1978).

Lien in favor of masons and carpenters not enforceable in equity absent impediment to legal remedy.

- Where a statute creates a specific lien, in favor of masons and carpenters, on buildings erected by them, and also gives them a specific remedy for the enforcement of such lien, a court of equity has no jurisdiction to enforce it, unless there is some impediment or difficulty charged to exist, which would render the remedy given by the statute unavailable. King v. Rutledge, 208 Ga. 172, 65 S.E.2d 801 (1951).

Basis for requirement that plaintiff and defendant be in privity.

- Requirement of privity between a plaintiff and a defendant in an action under this section can be drawn from the section only by the negative inference that the enumeration of certain instances in which the contractor need not be sued, gives rise to the necessary implication that the contractor must be sued in all other circumstances. Ben O'Callaghan Co. v. Schmincke, 376 F. Supp. 1361 (N.D. Ga. 1974).

Defendant and plaintiff must be in privity in actions under section.

- An action under this section must be brought against a defendant in direct privity with the plaintiff. In the normal case this requires the subcontractor to bring an action against the general contractor, and thus ensures that the subcontractor will seek compensation from the general contractor before the subscontractor will be allowed to foreclose on the owner's real property. Ben O'Callaghan Co. v. Schmincke, 376 F. Supp. 1361 (N.D. Ga. 1974).

Agreement between landowner and lessee sufficient to charge owner with lien.

- An agreement between a landowner and a lessee for a rent credit or payment in cash if necessary in exchange for permanent improvements is sufficient to charge the owner with a lien for material used pursuant to that agreement under former paragraph (3) of this section. Bennett Iron Works, Inc. v. Underground Atlanta, Inc., 130 Ga. App. 653, 204 S.E.2d 331 (1974).

Requirements for subcontracts linking owner and materialmen indirectly through contractors.

- There need be no contract between the materialman and the true owner, but there must be a contract for material between the true owner and some person for the erection of the improvements and, if the materialman has not sold directly to such person, then there must also be shown a contract between that person and the person to whom the materialman furnished the materials, and it must further appear that the subject matter of this subcontract is a part of the owner's original contract and within the owner's contractual commitment. Athens Elec. Supply Co. v. Delta Oil, Inc., 101 Ga. App. 515, 114 S.E.2d 289 (1960).

Materialman may obtain personal judgment against owner for materials sold to owner.

- Where materials are sold to an owner either directly or through another as his agent, the materialman may, upon proper pleadings and evidence, obtain a personal judgment against the owner for the price or value of such materials, but the materialman is not obliged to seek or obtain such a judgment in order to maintain foreclosure proceedings. Robinson v. Reese, 175 Ga. 574, 165 S.E. 744 (1932).

Wife not liable for improvements made by materialman in contract with her husband.

- A wife is not liable for services rendered or materials used in improving her property when such services and materials are furnished under a contract between her husband and the materialmen to which she is not a party. Nix v. Luke, 96 Ga. App. 123, 99 S.E.2d 446 (1957).

Cited in Broxton Artificial Stone Works v. Jowers, 4 Ga. App. 91, 60 S.E. 1012 (1908); David v. Marbut-Williams Lumber Co., 32 Ga. App. 157, 122 S.E. 906 (1924); Poythress v. Hucks, 56 Ga. App. 657, 193 S.E. 475 (1937); Northwest Atlanta Bank v. Manning, 193 Ga. 186, 17 S.E.2d 547 (1941); Millers Nat'l Ins. Co. v. Hatcher, 194 Ga. 449, 22 S.E.2d 99 (1942); Rose v. Crane Heating Co., 198 Ga. 295, 31 S.E.2d 717 (1944); Langford v. Edmondson, 82 Ga. App. 494, 61 S.E.2d 558 (1950); Davis v. Akins, 85 Ga. App. 364, 69 S.E.2d 791 (1952); Chandler v. Pennington, 89 Ga. App. 676, 80 S.E.2d 843 (1954); United States v. Ridley, 120 F. Supp. 530 (N.D. Ga. 1954); Mullinaux v. Gilreath, 91 Ga. App. 511, 86 S.E.2d 347 (1955); Saye v. Athens Lumber Co., 94 Ga. App. 118, 93 S.E.2d 806 (1956); Latham Plumbing & Heating Co. v. Ledbetter Trucks, Inc., 96 Ga. App. 219, 99 S.E.2d 545 (1957); Grigsby v. Fleming, 96 Ga. App. 664, 101 S.E.2d 217 (1957); Harris v. Parham, 213 Ga. 725, 101 S.E.2d 722 (1958); Perkins v. Lawler, 97 Ga. App. 38, 102 S.E.2d 69 (1958); Hill v. Dealers Supply Co., 103 Ga. App. 846, 120 S.E.2d 879 (1961); Goss v. Davenport, 105 Ga. App. 386, 124 S.E.2d 485 (1962); Weathers v. Modern Masonry Materials, Inc., 105 Ga. App. 736, 125 S.E.2d 532 (1962); Wilson v. Harris, 107 Ga. App. 509, 130 S.E.2d 612 (1963); Rogers v. Johnson, 116 Ga. App. 295, 157 S.E.2d 48 (1967); D.H. Overmyer Whse. Co. v. W.C. Caye & Co., 116 Ga. App. 128, 157 S.E.2d 68 (1967); Levy v. G.E.C. Corp., 117 Ga. App. 673, 161 S.E.2d 339 (1968); Reynolds v. Magbee Bros. Lumber & Supply Co., 224 Ga. 379, 162 S.E.2d 327 (1968); Short & Paulk Supply Co. v. Dykes, 120 Ga. App. 639, 171 S.E.2d 782 (1969); Algernon Blair, Inc. v. Atlantic Steel Placing Co., 297 F. Supp. 1340 (N.D. Ga. 1969); Jordan Co. v. Bethlehem Steel Corp., 309 F. Supp. 148 (S.D. Ga. 1970); Hospital Auth. v. AGN Mfg., Inc., 124 Ga. App. 159, 183 S.E.2d 58 (1971); Wall v. Mills, 126 Ga. App. 149, 190 S.E.2d 146 (1972); Phoenix Air Conditioning Co. v. Al-Carol, Inc., 129 Ga. App. 386, 199 S.E.2d 556 (1973); Steenhuis v. Todd's Constr. Co., 231 Ga. 709, 203 S.E.2d 530 (1974); Vector Co. v. Star Enters., Inc., 131 Ga. App. 569, 206 S.E.2d 636 (1974); Centennial Equities Corp. v. Hollis, 132 Ga. App. 44, 207 S.E.2d 573 (1974); Sasser & Co. v. Griffin, 133 Ga. App. 83, 210 S.E.2d 34 (1974); Schermerhorn v. Greater DeKalb Plumbing & Repair Co., 134 Ga. App. 517, 215 S.E.2d 282 (1975); G & B Contractors v. Coronet Developers, Inc., 134 Ga. App. 916, 216 S.E.2d 705 (1975); Benn v. McBride, 140 Ga. App. 698, 231 S.E.2d 438 (1976); Kalish v. King Cabinet Co., 140 Ga. App. 345, 232 S.E.2d 86 (1976); Grand Atlanta Corp. v. Chenggis, 142 Ga. App. 375, 235 S.E.2d 779 (1977); Shirah Contracting Co. v. Waite, 143 Ga. App. 355, 238 S.E.2d 728 (1977); Blanton v. Major, 144 Ga. App. 762, 242 S.E.2d 360 (1978); Harrison v. Barrett, 148 Ga. App. 108, 251 S.E.2d 100 (1978); Cherokee Culvert Co. v. Gurin, 153 Ga. App. 296, 265 S.E.2d 106 (1980); J.H. Morris Bldg. Supplies v. Brown, 154 Ga. App. 481, 270 S.E.2d 92 (1980); Cumberland Bridge Assocs. v. Builders Steel Supply, Inc., 169 Ga. App. 945, 315 S.E.2d 484 (1984); Spicewood, Inc. v. Ferro Pipeline Co., 181 Ga. App. 277, 351 S.E.2d 711 (1986); Yates Paving & Grading Co. v. Waters, 181 Ga. App. 537, 352 S.E.2d 791 (1987).

Lien does not arise upon failure to complete on time.

- Where the contractor agrees that the improvements shall be completed by a certain date, the lien under this section does not arise if there is a failure to perform such agreement. D.A. Tompkins Co. v. Monticello Cotton Oil Co., 137 F. 625 (S.D. Ga. 1905).

Contractor need not show compliance if owner prevents completion.

- One seeking to foreclose a contractor's lien for labor and materials must show a substantial compliance with the contract, but if the completion of the contract was prevented by the owner, this is equivalent to a completion of the contract as a remedial element. MacLeod v. Belvedale, Inc., 115 Ga. App. 444, 154 S.E.2d 756 (1967).

Contractor may be entitled to equitable lien.

- Where the contractor is by the act of the owner prevented from compliance, the contractor may be entitled to an equitable lien for the improvements made on a quantum meruit theory. Jones v. Ely, 95 Ga. App. 4, 96 S.E.2d 536 (1957).

Substantial compliance unnecessary if party with right to require architect's certificate prevents completion.

- While one seeking to foreclose a contractor's lien for labor and materials must show substantial compliance with the contract, if the completion of the contract was prevented by the party otherwise having the right to insist on the architect's certificate, this is equivalent to completion of the contract as a remedial element. Gellis v. B.L.I. Constr. Co., 148 Ga. App. 527, 251 S.E.2d 800 (1978).

Abandonment defeats contractor's claim of lien.

- An abandonment of work before compliance with the contract, upon a mere apprehension that the contractor will not be paid at the time for payment, is unauthorized and defeats contractor's claim of lien. MacLeod v. Belvedale, Inc., 115 Ga. App. 444, 154 S.E.2d 756 (1967).

The law does not allow a contractor, mechanic or materialman to violate a contract and claim a lien for work done, because of an apprehension or fear that the contractor will not receive pay. Rome Hotel Co. v. Warlick, 87 Ga. 34, 13 S.E. 116 (1891).

Where subcontractor has fully performed, nonperformance by contractor will not defeat subcontractor's lien. Massachusetts Bonding & Ins. Co. v. Realty Trust Co., 142 Ga. 499, 83 S.E. 210 (1914), appeal dismissed, 241 U.S. 687, 36 S. Ct. 451, 60 L. Ed. 1237 (1916); Holmes v. Venable, 27 Ga. App. 431, 109 S.E. 175 (1921).

Death of the owner shortly before completion of a house will not prevent the perfection of a contractor's lien, when the house was completed by agreement with the administration. Boynton v. Westbrook, 74 Ga. 68 (1884).

Claim of lien need not show compliance.

- It is not required that the claim of lien as recorded should show on its face that the materialman has complied with the contract. Ford v. Wilson & Co., 85 Ga. 109, 11 S.E. 559 (1890).

Form of materialman's claim.

- The materialman's claim of lien filed for record must be in substance in the language of former paragraph (2) of this section. Fowler v. Roxboro Homes, Inc., 98 Ga. App. 829, 107 S.E.2d 285 (1959).

Section operates as a sort of automatic garnishment, which, without summons or service impounds the fund due by the owner, and requires it to be held up until the expiration of the time named in the statute. Scott v. Williams, 111 Ga. App. 735, 143 S.E.2d 16 (1965).

Lien which fails to comply with section is ineffective.

- When the claim of lien as filed fails to comply with the provisions of this section, the purported lien is ineffective. J.H. Morris Bldg. Supplies v. Brown, 151 Ga. App. 522, 260 S.E.2d 358 (1979).

Lien cannot constitute abuse of process.

- Under O.C.G.A. § 44-14-361 et seq., a lien attaches when a laborer performs work on real property; however, under former subsections (2) and (3) of this section, it must be perfected within three months after either the completion of the work or the date materials are furnished and an action to recover the amount of the claim must be instituted within 12 months from the time labor or materials were last furnished. Thus, a lien is not civil process and plaintiff materialmen do not state a claim upon which relief can be granted when they contend that the filing of a lien constitutes abuse of process. Carl E. Jones Dev., Inc. v. Wilson, 149 Ga. App. 679, 255 S.E.2d 135 (1979).

Claim must be recorded.

- The mere filing of a claim for record is not sufficient compliance with this section. It must be actually recorded. Jones v. Kern, 101 Ga. 309, 28 S.E. 850 (1897); Ohio Blower Co. v. Savannah Lighting Co., 21 Ga. App. 464, 94 S.E. 636 (1917).

Effect of recording lien and instituting action.

- The record of the lien, as provided by this section, within three months from the date when the material was furnished, and the institution of an action within one year from that date, merely preserves the lien and the right to establish it against the property. Davis v. Stone, 48 Ga. App. 532, 173 S.E. 454 (1934).

Recordation within three months must be alleged in complaint for foreclosure. Hinkle v. Reid, 16 Ga. App. 788, 86 S.E. 411 (1915).

Computation of three-month period.

- From May 6, to August 6 in a given year, is more than three months. Jones v. Kern, 101 Ga. 309, 28 S.E. 850 (1897).

When materialman's lien attaches generally.

- The lien of a materialman on real estate, arising under O.C.G.A. § 44-14-361 and this section, attaches from the time the work under the contract is commenced or the material is furnished. Spirides v. Victory Lumber Co., 76 Ga. App. 78, 45 S.E.2d 65 (1947).

Lien attaches unless owner affirmatively shows waiver or sworn statement of contractor.

- This section does not require that the owner shall "take" an affidavit from the contractor in order to prevent the materialman's lien from attaching. It provides that the lien shall attach unless the true owner shows that such lien has been waived in writing or produces the sworn statement of the contractor, etc. Chambers Lumber Co. v. Gilmer, 60 Ga. App. 832, 5 S.E.2d 84 (1939).

Account becomes due upon the delivery of the last item constituting a part of the account. Dixie Lime & Stone Co. v. Ryder Truck Rental, Inc., 140 Ga. App. 188, 230 S.E.2d 322 (1976).

Claim of lien becomes due upon the date of delivery of the last item included in the claim. Vulcan Materials Co. v. D.H. Overmyer Whse. Co., 115 Ga. App. 792, 156 S.E.2d 213 (1967).

Inclusion of nonlienable items with lienable items does not defeat the whole. Sears Roebuck & Co. v. Superior Rigging & Erecting Co., 120 Ga. App. 412, 170 S.E.2d 721 (1969).

Unless lienable and nonlienable items cannot be separately charged.

- Where lienable and nonlienable items are included in one contract for a specific sum, and it cannot be determined what proportion is chargeable to each, the benefit of lien law is lost. Jackson's Mill & Lumber Co. v. Holliday, 108 Ga. App. 663, 134 S.E.2d 563 (1963).

When running accounts fall due.

- Although it may be a custom for running accounts to fall due and become payable on January 1, following, yet for the purpose of foreclosing a lien arising out of such an account, the account will be regarded as falling due upon the delivery of the last item constituting a part of the running account covered by the contract. McCluskey v. Still, 32 Ga. App. 641, 124 S.E. 548 (1924).

Requirements for perfecting special lien for running account.

- A materialman may not perfect a special lien on the owner's property without first showing that it had filed its claim of lien within three months from the date of the last delivery of one or more specific items on the particular job and had obtained a judgment against the contractor based on all of the items shown in the running account or bill of particulars involved in that action. It could not try, in an action to foreclose a lien, the question whether or not it had furnished any item not appearing in the running account presented in the action against the contractor. Chambers Lumber Co. v. Gilmer, 60 Ga. App. 832, 5 S.E.2d 84 (1939).

The lien for materials furnished under an entire contract is recorded in time if it is recorded within three months after the last item is furnished. New Ebenezer Ass'n v. Gress Lumber Co., 89 Ga. 125, 14 S.E. 892 (1892).

If the claim of lien is recorded within three months from the date of the last item listed on the running account, charged upon the open account against the purchaser, it is recorded in time, even though such particular item has been paid for. Chambers Lumber Co. v. Gilmer, 60 Ga. App. 832, 5 S.E.2d 84 (1939).

In cases involving a claim of lien for material furnished by a materialman, if the lien is recorded within three months from the delivery or furnishing of the last item of material which constitutes a part of the open or running account covered by the contract, then the claim is timely filed as the whole. Sears Roebuck & Co. v. Superior Rigging & Erecting Co., 120 Ga. App. 412, 170 S.E.2d 721 (1969).

A lien recorded within three months after the last item is furnished is recorded in time although the items unpaid for and for which the materialman claims a lien were all furnished more than three months prior to the recording of the lien, and all the other items, including those representing material furnished within three months of the recording of the lien, had been paid for. Stewart Bros. v. Randall Bros., 138 Ga. 796, 76 S.E. 352 (1912); Pippin v. Owens, 29 Ga. App. 789, 116 S.E. 549 (1923). But see Downtowner of Atlanta, Inc. v. Dunham-Bush, Inc., 120 Ga. App. 342, 170 S.E.2d 590 (1969).

Last item must be lienable in running account extending over three months.

- While a claim of lien for material furnished for building purposes from time to time under one and the same contract is recorded in time if the record of the claim of lien is made within three months from the delivery of the last item constituting a part of the running account covered by the contract, although many items of the account have been furnished many months before the date in the record, yet, for this rule to apply, the last item constituting the running account covered by the contract must be a lienable item. Downtowner of Atlanta, Inc. v. Dunham-Bush, Inc., 120 Ga. App. 342, 170 S.E.2d 590 (1969). But see Stewart Bros. v. Randall Bros., 138 Ga. 796, 76 S.E. 352 (1912); Pippin v. Owens, 29 Ga. App. 789, 116 S.E. 549 (1923).

Lien not timely recorded where last lienable materials delivered over three months before recording.

- Where the recording of the lien is done within three months of the furnishing of the last material, and the said last material furnished is not lienable material, and the last lienable materials were delivered more than three months prior to the recording of the lien, the lien is not timely recorded. Downtowner of Atlanta, Inc. v. Dunham-Bush, Inc., 120 Ga. App. 342, 170 S.E.2d 590 (1969). But see Stewart Bros. v. Randall Bros., 138 Ga. 796, 76 S.E. 352 (1912); Pippin v. Owens, 29 Ga. App. 789, 116 S.E. 549 (1923).

Period when account becomes due begins when last materials furnished, regardless of agreement.

- The period when the account becomes due begins on the date that the last materials were furnished regardless of an agreement to the contrary when the materials are purchased between the materialman or laborer, etc., and the contractor. Dixie Lime & Stone Co. v. Ryder Truck Rental, Inc., 140 Ga. App. 188, 230 S.E.2d 322 (1976).

Supplier to a supplier of materials is not entitled to claim lien under this section. Associated Distribs., Inc. v. De La Torre, 138 Ga. App. 71, 225 S.E.2d 462 (1976), overruled on other grounds, Adair Mtg. Co. v. Allied Concrete Enters., Inc., 144 Ga. App. 354, 241 S.E.2d 267 (1977).

What materialman must do when furnishing material for several properties.

- When a materialman is furnishing at the same time material to one contractor for the improvement of property belonging to different persons, and has full knowledge of the separate contracts, and money is paid to the materialman by the contractor from time to time on account of the material so furnished, it is incumbent upon the materialman to keep separate accounts and to find out from the contractor on what contract the money is paid, and to what account it should be applied. If the materialman does not do so, but applies the money as a credit on a general account against the contractor, the materialman thereby waives the right to a lien on the owner's property, and must look alone to the contractor. Grigsby v. Fleming, 96 Ga. App. 664, 101 S.E.2d 217 (1957).

Delivery dates under one contract cannot perfect lien under different contract by same parties.

- Where an owner of real estate makes an express contract with a contractor for heating equipment, and before the work is finished makes a separate and distinct contract for plumbing, the items furnished under each are separate and distinct, and the delivery dates under one contract may not be used for the purpose of perfecting a lien under the other; aliter, if all the material be furnished under one and the same contract. Crane Co. v. Hirsch, 61 Ga. App. 632, 7 S.E.2d 83 (1940).

Furnishing of material to contractor for improvement of contractor's and third party's separate properties.

- Where a materialman at the same time furnishes material to one contractor for the improvement of properties belonging to different persons, and money is paid by the contractor from time to time for the material so furnished, the materialman waives the right to a lien on all properties not owned by the contractor by not keeping separate accounts, by not finding out from the contractor on what contract the money is paid, and to what account it should be applied, and by applying the money paid by the contractor on a general account against the contractor. The fact that the materialman has no knowledge as to whether the improved property is owned by the contractor or by third persons is immaterial. Building Material Supply Co. v. North, 116 Ga. App. 348, 157 S.E.2d 497 (1967).

Filing of claim against individual landowner and against corporation.

- Where a materialman files a claim of lien for work done and materials furnished on certain described real estate, alleging that it was the premises of a certain corporation and that the materialman is claiming this lien against the corporation, an action filed thereon to foreclose the lien, and naming as defendants the corporation, alleged to be the entity with which the plaintiff materialman, contracted, and an individual, alleged to be the owner of the premises, the complaint does not, against general demurrer (now motion to dismiss) of the defendant individual, state any cause of action as to defendant. Fowler v. Roxboro Homes, Inc., 98 Ga. App. 829, 107 S.E.2d 285 (1959).

Placement of property in receivership no excuse for failure to record.

- A failure to claim and record is not excused by the fact that the property on which the lien would have attached is put into the hands of a receiver. Filer & Stowell Co. v. Empire Lumber Co., 91 Ga. 657, 18 S.E. 359 (1893).

A defendant may be estopped to deny recordation by an admission in defendant's plea. Royal v. McPhail, 97 Ga. 457, 25 S.E. 512 (1895).

Sufficient information in claim of lien generally.

- Where it appears that the claim of lien upon which the action is partly based was recorded in the records of the superior court of the proper county, and the claim recites that the lien is claimed on the property of the defendant, naming defendant, and giving the address of the property, the property on which the lien is sought to be attached is sufficiently described to constitute a compliance with the requirements, concerning the description of the premises upon which the lien is sought. Love v. Hockenhull, 91 Ga. App. 877, 87 S.E.2d 352 (1955).

Materialman must state exact date claim is due.

- A claim which states that the lien is filed and recorded within 90 days after said materials and supplies were furnished by the undersigned is not sufficient under the new law since lien laws are strictly construed. The materialman must state the exact date the claim is due. Lowe's of Savannah, Inc. v. Jarrell, 150 Ga. App. 220, 257 S.E.2d 341 (1979).

Complaint which does not allege claim was properly recorded sets out no cause of action.

- A complaint, by a materialman, does not set out a cause of action for a judgment establishing a lien upon the property improved, where it is not alleged that a claim of lien has been filed and recorded as required by O.C.G.A. § 44-14-361, and this section. King v. Rutledge, 208 Ga. 172, 65 S.E.2d 801 (1951).

Claim which does not specify amount claimed and date claim was due.

- If the claim of lien fails to specify both the amount claimed due and the date the claim was due, someone purchasing or acquiring an interest in the property after the claim of lien was filed would not take subject to the lien absent actual notice of the existence of the lien, but the lien can still be enforced against the owner of the property, if the owner has consented to the contract under which the improvements to real estate were made or if the owner has taken action estopping the owner from denying such consent. J.H. Morris Bldg. Supplies v. Brown, 245 Ga. 178, 264 S.E.2d 9 (1980).

Allegation of ownership.

- It is not required that a claim of lien shall allege ownership of the house and premises more distinctly than that they are the house and premises of the person named. Ford v. Wilson & Co., 85 Ga. 109, 11 S.E. 559 (1890).

Erroneous allegation as to premises.

- Materialmen are charged with knowledge of the premises upon which they filed their claim of lien, and they are charged with knowledge of the premises to which they delivered the materials and where they knew that these premises differed, in plenty of time to properly record a claim of lien as required by law, they cannot seek the aid of a court of equity to relieve them from their own negligence. King v. Rutledge, 208 Ga. 172, 65 S.E.2d 801 (1951).

Party claiming lien need not sign it nor have it attested.

- It is not necessary for a party claiming a lien to sign it, from which it follows that a signature on a lien need not be attested. New London Square, Ltd. v. Diamond Elec. & Supply Corp., 132 Ga. App. 433, 208 S.E.2d 348 (1974).

While section requires name of claimant to appear, it requires no signature. Southwire Co. v. Metal Equip. Co., 129 Ga. App. 49, 198 S.E.2d 687, cert. denied, 414 U.S. 1092, 94 S. Ct. 723, 38 L. Ed. 2d 550 (1973).

No affidavit required to file or foreclose lien against real estate. Southwire Co. v. Metal Equip. Co., 129 Ga. App. 49, 198 S.E.2d 687, cert. denied, 414 U.S. 1092, 94 S. Ct. 723, 38 L. Ed. 2d 550 (1973).

Former paragraph (3) not a statute of limitation.

- Since O.C.G.A. §§ 44-14-360 through44-14-367 creates a new liability, gives an action to enforce it unknown to the common law, and fixes the time within which that action may be commenced, former paragraph (3) of this section is not a statute of limitation. Lee v. Stokes, 135 Ga. App. 642, 218 S.E.2d 654 (1975).

Former paragraph (3) of this section is not a statute of limitations as to the foreclosure or assertion of the lien, but a condition precedent to the establishment of the lien. Logan Paving Co. v. Liles Constr. Co., 141 Ga. App. 81, 232 S.E.2d 575 (1977).

Former paragraph (3) of this section relates to action against person creating debt and not to a subsequent action to foreclose the lien against the property improved. Logan Paving Co. v. Liles Constr. Co., 141 Ga. App. 81, 232 S.E.2d 575 (1977).

Meaning of "if filed within 12 months from the time the lien shall become due."

- The words in this section "if filed within 12 months from the time the lien shall become due" simply allow the plaintiff materialman an equal amount of time to commence plaintiff's in rem proceeding against the property improved as plaintiff would have had to file an action against the contractor if plaintiff had been compelled to file such action in the first instance. Adair Mtg. Co. v. Allied Concrete Enters., Inc., 144 Ga. App. 354, 241 S.E.2d 267 (1977), aff'd, Adair Mtg. Co. v. Allied Concrete Enterprises, Inc., 241 Ga. 121, 243 S.E.2d 888 (1978).

Meaning of "notice of a claim of lien."

- "Notice of a claim of lien" is not notice of the perfected or recorded lien, although this is sufficient, but rather is notice of the furnishing of material or performance of labor. Gellis v. B.L.I. Constr. Co., 148 Ga. App. 527, 251 S.E.2d 800 (1978).

Notice of claim of lien is not effected only upon demand for payment or filing of claim of lien. Gellis v. B.L.I. Constr. Co., 148 Ga. App. 527, 251 S.E.2d 800 (1978).

Time limit refers to commencement of action, not enforcement of lien.

- The requirement of this section that the action for the recovery of the amount of the materialman's claim within 12 months from the time the same shall become due refers to an action against the contractor and has no reference to the time within which the lien must be enforced. Chandler v. Pennington, 89 Ga. App. 676, 80 S.E.2d 843 (1954); Gellis v. B.L.I. Constr. Co., 148 Ga. App. 527, 251 S.E.2d 800 (1978).

The 12-month time limit has reference to the time within which an action must be brought against the person primarily liable to the laborer or materialman and has no reference to the time within which the lien must be enforced. Jordan Co. v. Adkins, 105 Ga. App. 157, 123 S.E.2d 731 (1961).

Time limit as essential as other lien requirements.

- Commencement of an action within 12 months is just as essential to the establishment of a lien as any other of the requirements of this section. Cowart v. Reeves, 80 Ga. App. 161, 55 S.E.2d 911 (1949).

Requirement for action against debtor before enforcement of mechanic's lien generally.

- One of the conditions of a mechanic's statutory right to enforce a lien upon real property for the repair or improvement of which the mechanic has supplied labor or materials or both is that the mechanic must bring an action on the claim against the person with whom the debt was contracted, either the owner or the contractor, as the case may be, within 12 months from the time when the debt became due. Bryant v. Jones, 90 Ga. App. 314, 83 S.E.2d 46 (1954).

Action against debtor within 12 months after debt becomes due is condition precedent.

- One of the conditions precedent to the foreclosure of the liens specified in O.C.G.A. § 44-14-361 is that action must be brought by the laborer or materialman against the person with whom the debt was contracted, either the owner or the contractor, as the case may be, within 12 months from the time the debt became due. Allied Asphalt Co. v. Cumbie, 134 Ga. App. 960, 216 S.E.2d 659 (1975).

Section must be followed in commencing action on lien.

- Where the plaintiff materialman does not commence an action on its lien according to the provisions and requirements of this section, one of the conditions precedent to foreclosing a lien under O.C.G.A. § 44-14-530 is absent and the plaintiff materialman cannot prevail. Ben O'Callaghan Co. v. Schmincke, 376 F. Supp. 1361 (N.D. Ga. 1974).

Where no action predicated upon claim of lien instituted in 12 months, no lien created upon the real estate and building as against the title of the claimant. Kwilecki v. Young, 180 Ga. 602, 180 S.E. 137 (1935).

Plaintiffs failure to file notice of action against contractor renders its claim of lien unenforceable. Hancor, Inc. v. Fleming Farms, Inc., 155 Ga. App. 579, 271 S.E.2d 712 (1980).

Materialman's failure to file notice of action against contractor in county in which claim of lien was filed when action was brought in another county, in accordance with this section, renders claim of lien unenforceable. Hancor, Inc. v. Fleming Farms, Inc., 155 Ga. App. 579, 271 S.E.2d 712 (1980).

Failure to perfect lien vitiates lien.

- Before the rendition of a judgment in favor of a materialman's lien claimant the claimed lien is only inchoate, and the failure of the claimant to perfect the lien as provided by this section vitiates it, not only as against third persons, but as against the claimant. Carter-Moss Lumber Co. v. Short, 66 Ga. App. 330, 18 S.E.2d 61 (1941).

Section deals with actions against contractors, not owners.

- The provisions of this section relate to the action against the contractor rather than an action against the owner to enforce the lien. Montgomery v. Richards Bldg. Materials, Inc., 122 Ga. App. 472, 177 S.E.2d 507 (1970).

Former paragraph (3) of this section relates only to an action against the contractor, so far as recovery of a personal judgment is concerned. Robinson v. Reese, 175 Ga. 574, 165 S.E. 744 (1932).

The beginning of former paragraph (3) of this section, which sets forth the time limitations for the commencement of actions, applies only to actions brought against contractors and not to actions against the owner of the real estate. The notice required to be filed in regard to the commencement of such action is notice of the commencement of an action against the contractor, not the landowner. Hancor, Inc. v. Fleming Farms, Inc., 155 Ga. App. 579, 271 S.E.2d 712 (1980).

The requirement of former paragraph (3) of this section as to the time within which an action may be commenced relates to the materialman's action against the contractor and not to the action against the owner of the real estate. Buck v. Tifton Mfg. Co., 4 Ga. App. 695, 62 S.E. 107 (1908); Adair Mtg. Co. v. Allied Concrete Enters., Inc., 241 Ga. 121, 243 S.E.2d 888 (1978).

The requirement of this section as to the time within which the action shall be commenced relates to the action in personam against the contractor and not to the subsequent proceeding against the landowner. Southern Ry. v. Crawford & Slaten Co., 46 Ga. App. 424, 167 S.E. 756 (1933), aff'd, 178 Ga. 450, 173 S.E. 91 (1934).

Where action against contractor timely, action against owner need not be commenced within 12 months.

- Where material for the improvement of real estate was furnished, not directly to the owner, but to a contractor, and where the materialman, after complying with the contract and recording the lien as prescribed by law, instituted against the contractor an action for the recovery of the claim within 12 months from the time the same became due, and recovered a judgment in such action, it is not essential to the foreclosure of the lien against the real estate that the materialman should also institute an action against the owner for that purpose within 12 months from the maturity of the claim. Southern Ry. v. Crawford & Slaten Co., 178 Ga. 450, 173 S.E. 91 (1934).

Reason time limitation does not apply to foreclosure against owner.

- The requirement of this section as to the time within which the action shall be commenced relates to the action in personam against the contractor, and not to the action against the owner of the real estate. If this were not true, the right of the materialman to foreclose the lien against the real estate might be wholly defeated, without fault on the materialman's part, by such delay in the trial of the action against the contractor as to make it impossible to commence foreclosure proceedings against the owner within 12 months from the time when the claim became due. Southern Ry. v. Crawford & Slaten Co., 178 Ga. 450, 173 S.E. 91 (1934).

Timely action against one party does not stop running of limit as to other parties.

- The 12-month limitation in this section applies against the owner of the land, and not merely other contractors who become indebted with respect to work on the land, so that a timely action against one individual does not stop the 12-month limit running with respect to the remaining parties. Whitley Constr. Co. v. Carlyle Real Estate Ltd. Partnership-72, 137 Ga. App. 113, 222 S.E.2d 895 (1975).

Where work as well as supplies are provided, timeliness of lien depends on completion date.

- Where a company was more than a mere supplier in that it is engaged to do a certain specified job or work, the decisive factor in whether or not it files a timely lien is the point in time it completes its work. Sears Roebuck & Co. v. Superior Rigging & Erecting Co., 120 Ga. App. 412, 170 S.E.2d 721 (1969).

Agreement cannot extend time for bringing action.

- A mere agreement to extend the date by which an action must be brought, once established, will not operate to extend the time for bringing the action for recovery of the amount of the claim. Home Mart Bldg. Ctrs., Inc. v. Jones, 133 Ga. App. 822, 212 S.E.2d 476 (1975), overruled on other grounds sub nom., Dixie Lime & Stone Co. v. Ryder Truck Rental, Inc., 140 Ga. App. 188, 230 S.E.2d 322 (1976).

Date by which action on running account must be brought.

- A debt for work done and materials furnished by a mechanic becomes "due," within the meaning of the lien laws, when the mechanic has completed performance of the contract, or after the last item of work and materials has been entered on a running account, and, unless actual or constructive notice is given of any contractual provisions for an extension of credit to the owner, or for some other time when the debt shall become due, such provisions are ineffective to extend the time within which action must be brought against the person with whom the debt was contracted, in order to enforce the lien against the property itself in the possession of subsequent purchasers. Bryant v. Jones, 90 Ga. App. 314, 83 S.E.2d 46 (1954).

Renewal of dismissed action.

- If a materialman forecloses within 12 months and dismisses the action, it cannot be renewed within six months thereafter, unless the renewal is also within 12 months of the maturity of the claim. Chamblee Lumber Co. v. Crichton, 136 Ga. 391, 71 S.E. 673 (1911).

Day on which claim for materials comes due is to be counted in computing the 12 months. David v. Marbut-Williams Lumber Co., 32 Ga. App. 157, 122 S.E. 906 (1924).

For case where exact date of completion unknown, see Young v. Landers, 31 Ga. App. 59, 119 S.E. 464 (1923).

When notice of filing of action against contractor not mandatory.

- In some instances, notice of the filing of an action against the contractor would not be mandatory, e.g., where the contractor has died, absconded or is otherwise not subject to service of process, or where the contractor has been adjudicated a bankrupt, or where after the filing of the action no final judgment can be obtained by reason of death or adjudication of bankruptcy. Hancor, Inc. v. Fleming Farms, Inc., 155 Ga. App. 579, 271 S.E.2d 712 (1980).

The remedy of the materialman is complete and it is immaterial whether or not the contractor returns to the jurisdiction of the court within 12 months. In such event, it is not incumbent upon the materialman to serve such returning contractor. Cowart v. Reeves, 80 Ga. App. 161, 55 S.E.2d 911 (1949).

Purpose of former paragraph (4) of section.

- The history of former paragraph (4) of this section evinces a legislative intent to avoid the harsh result of a materialman being deprived of a lien through no fault of the materialman's own by virtue of the bankruptcy, etc., of the contractor. Melton v. Pacific S. Mtg. Trust, 241 Ga. 589, 247 S.E.2d 76 (1978).

Meaning of amendment adding term "subcontractor."

- Former paragraph (4) of this section was amended by adding the word "subcontractor" after "contractor" in each of the instances therein set out, thus indicating the intention to keep the language of the paragraph intact but to extend it both to contractors and subcontractors. Athens Elec. Supply Co. v. Delta Oil, Inc., 101 Ga. App. 515, 114 S.E.2d 289 (1960).

"Owner" includes owner of leasehold estate.

- The word "owner," as used in former paragraph (4) of this section, is sufficiently comprehensive to include the owner of a leasehold estate. Bennett Iron Works, Inc. v. Underground Atlanta, Inc., 130 Ga. App. 653, 204 S.E.2d 331 (1974).

Judgment generally prerequisite to foreclosure.

- Except as provided in former paragraph (4) of this section, there can be no valid foreclosure of a materialman's lien without a judgment against the contractor. Ayers v. Baker, 216 Ga. 132, 114 S.E.2d 847 (1960).

Without a judgment against the general contractor, liens cannot be foreclosed on the owner's property. McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 250 S.E.2d 424 (1978).

There can be no valid foreclosure of a materialman's lien for material furnished to a contractor and used in improving the real estate of another person against which the lien is claimed in the absence of a judgment in favor of the materialman against the contractor for the price or value of such material. Smith v. Walker, 194 Ga. 586, 22 S.E.2d 160 (1942).

In the absence of certain specified exceptions, the plaintiff materialman in an action to foreclose a materialman's lien must bring an action against the contractor to whom the labor and materials were furnished as a condition precedent to establishing a right to foreclosure. Liggett v. Harper, 151 Ga. App. 616, 260 S.E.2d 735 (1979).

Judgment must be alleged.

- Where material has been furnished to a contractor or subcontractor for the improvement of real estate, in an action against the owner to foreclose a materialman's lien on such real estate, the plaintiff materialman must allege, in addition to other essentials, that the materialman has brought an action against the contractor or subcontractor, as the case may be, to whom the material was furnished, and, unless the case is one within the exceptions enumerated under this section, that a judgment against such contractor has been obtained. Chambers Lumber Co. v. Martin, 112 Ga. App. 826, 146 S.E.2d 529 (1965).

Unless the case falls within one of the exceptions enumerated under this section, in an action to foreclose a materialman's lien on real estate, plaintiff materialman must show that plaintiff has brought an action against the contractor or subcontractor, as the case may be, to whom the material was furnished. Tri-State Culvert Mfg., Inc. v. Crum, 139 Ga. App. 448, 228 S.E.2d 403 (1976); Rochester v. Dixon's Concrete Prods., Inc., 154 Ga. App. 239, 267 S.E.2d 819 (1980).

And must be express judgment for price of materials.

- An express judgment for the price of materials must be shown in order to comply with the provisions of former paragraph (4) of this section, rather than a judgment on a note which includes the purchase price of the materials. Brooks v. West Lumber Co., 88 Ga. App. 510, 77 S.E.2d 43 (1953).

Section is unambiguous as to requisites for foreclosing lien directly against owner's property without the necessity of judgment against the contractor and does not provide that before a materialman can proceed directly against the property of the owner, it must also appear that the contractor is either insolvent or does not have assets within the jurisdiction of the court. Levin v. O'Neill Mfg. Co., 96 Ga. App. 43, 99 S.E.2d 343 (1957).

Effect of former paragraph (7) on former paragraph (4) of section.

- Former paragraph (7) of this section, which deals with making contractors or subcontractors parties, and with interventions by these persons when not named as parties, had the effect of repealing the provisions of former paragraph (4) as to the requirement that except in the situations therein set out the owner of property could not be sued without first or concurrently suing the contractor. Athens Elec. Supply Co. v. Delta Oil, Inc., 101 Ga. App. 515, 114 S.E.2d 289 (1960).

Section applies to resident and nonresident contractors who abscond.

- Former paragraph (4) of this section does not apply only to resident contractors of this state who abscond, but also applies to a nonresident and one who has no permanent residence. Cowart v. Reeves, 80 Ga. App. 161, 55 S.E.2d 911 (1949).

Contractor to whom materials are furnished can be owner.

- Under former paragraph (4) of this section there is no requirement that the contractor to whom the materials are furnished be a person other than the owner. Reynolds v. Magbee Bros. Lumber & Supply Co., 117 Ga. App. 252, 160 S.E.2d 531, rev'd on other grounds, 224 Ga. 379, 162 S.E.2d 327 (1968).

Extent of owner's liability to materialman after contractor abandons contract.

- In an action by a materialman, who has furnished materials to a contractor to improve real estate of an owner to foreclose a lien, the maximum liability of such owner to such materialman is fixed by the contract price between such owner and such contractor. The abandonment by the contractor of the contract does not constitute a defense on behalf of the defendant owner as to materials actually used in the improvement of the premises, unless the owner after such abandonment by the contractor has the improvements provided for in the contract completed, thus forming the basis for an additional lien to attach against the owner's property. Tumlin v. Wilson, 108 Ga. App. 273, 132 S.E.2d 815 (1963).

Where contractor absconds, materialman need not obtain judgment before enforcing lien.

- Where the contractor to whom materials are furnished for the improvement of an owner's property absconds from the state within 12 months from the date the materials were furnished, so that personal jurisdiction cannot be obtained of the contractor in an action for the cost of the materials, the materialman is relieved of the necessity of obtaining judgment against the contractor as a prerequisite to enforcing a lien against the property improved. Levin v. O'Neill Mfg. Co., 96 Ga. App. 43, 99 S.E.2d 343 (1957).

Materialman need not allege that contractor is insolvent.

- In a proceeding where it is alleged that the contractor within 12 months of the furnishing of the material has absconded from the limits of the state and was at the time of the filing of the complaint still without the limits of the state so that no personal jurisdiction can be had of the contractor, it is not necessary for the plaintiff materialman to also allege, that the contractor is insolvent or that the contractor does not have property and assets in the jurisdiction of the court sufficient to pay the plaintiff the amount alleged to be due. Levin v. O'Neill Mfg. Co., 96 Ga. App. 43, 99 S.E.2d 343 (1957).

Marshal's nun est inventus not proof of abscondence.

- One of the prerequisites for enforcing a lien directly against the property is a showing that the contractor has absconded, died, left the state or gone bankrupt. A marshal's non est inventus is not proof that contractor has absconded. Q.S. King Co. v. Minter, 124 Ga. App. 517, 184 S.E.2d 594 (1971).

Cost of completing work deducted from contract price when contractor abandons contract.

- Where a contractor abandons a contract, the cost of completing the work is to be deducted from the contract price in order to ascertain the amount up to which the subcontractors may claim liens. If such deductions, together with payments previously made to the contractor, equal or exceed the entire contract price, then the subcontractors and materialmen have no lien, since there is nothing due under the contract. The owner is required to show that the sums paid to the contractor were properly appropriated to materialmen and laborers or that the contractor's statutory affidavit concerning such indebtedness had been obtained. Jones Mercantile Co. v. Lyn-Har, Inc., 245 Ga. 812, 267 S.E.2d 251 (1980).

Effect of bankruptcy under subsection.

- Under former paragraph (4) of this section, bankruptcy relieves the lienholder from the necessity of obtaining a judgment against the contractor prior to proceeding against the "owner of the property." Bennett Iron Works, Inc. v. Underground Atlanta, Inc., 130 Ga. App. 653, 204 S.E.2d 331 (1974).

Bankruptcy does not discharge valid inchoate liens.

- The purpose of lien statutes is to give the furnisher of labor and material a claim upon the owner; to compel the owner at the owner's peril to withhold final payment until the owner has received assurance from the contractor that the owner has paid all material and labor claims, which are or which may be perfected into liens, and bankruptcy does not discharge valid liens any more when, though inchoate and in the process of completion, they are in good standing when bankruptcy comes, than when every required step has already been taken. When bankruptcy supervenes, it does not take from laborers and materialmen funds devoted to their claims, to appropriate them to the general creditors, merely because of some step in the procedure, which there is still time to take, has not been taken. Cutler-Hammer, Inc. v. Wayne, 101 F.2d 823 (5th Cir.), cert. denied, 307 U.S. 635, 59 S. Ct. 1031, 83 L. Ed. 1517 (1939).

Lienholder need not file prior to bankruptcy.

- The portion of this section which states "if such contractor . . . shall be adjudicated a bankrupt" does not require that action be filed by the lienholder against the contractor prior to the contractor's bankruptcy if further action is to be maintained. Taylor v. Mateer & Co., 117 Ga. App. 565, 161 S.E.2d 394 (1968).

Lien is preserved when materialman timely files claim in bankruptcy court.

- Materialman commences an action within the meaning of former paragraph (4) of this section when the materialman files a claim in a bankruptcy proceeding. Where a lien claim is asserted in bankruptcy proceedings under state statutes which provide that the lien is not preserved unless positive action to enforce it has been commenced in the state court within a definite period, it is not necessary for the claimant to file action in the state court if the lien is asserted in the bankruptcy court within the statutory time. The assertion of the claim in the bankruptcy court within the period requisite under the state statute is the equivalent of filing other proceedings for enforcement. Melton v. Pacific S. Mtg. Trust, 241 Ga. 589, 247 S.E.2d 76 (1978).

Materialman may bring action against bankrupt contractor in lieu of foreclosure.

- Where a contractor is adjudicated a bankrupt within the 12-month period following the date that the claim becomes due, the materialman is not relegated to foreclosure against the property in an action against the owner commenced within the 12 months. By allowing the materialman to bypass the requirement of commencing an action against the contractor when such an action is not feasible and to proceed directly to foreclosure of the lien, the General Assembly did not intend to deprive the materialman of the right to proceed under the basic statutory provision to perfect a lien by commencing an action against the contractor within 12 months. Melton v. Pacific S. Mtg. Trust, 241 Ga. 589, 247 S.E.2d 76 (1978).

Claims not invalid merely because actions were not begun before contractor went bankrupt.

- Where materialmen and laborers complied with provisions of section, except for commencement of an action for the recovery of the amount of their claims within 12 months from the time the same became due, at the time of the bankruptcy of the contractor the claims to liens were not invalid because the claimants had not commenced such action, prior to the supervention of bankruptcy. Cutler-Hammer, Inc. v. Wayne, 101 F.2d 823 (5th Cir.), cert. denied, 307 U.S. 635, 59 S. Ct. 1031, 83 L. Ed. 1517 (1939).

When contractor bankrupt, claim filed within 12 months after amount due satisfies requirements.

- The filing by a materialman of a claim in the contractor's bankruptcy proceeding within 12 months from the time the amount becomes due satisfies the requirement of former paragraph (4) of this section for commencement of an action for the recovery of the amount of the claim of lien. Melton v. Pacific S. Mtg. Trust, 241 Ga. 589, 247 S.E.2d 76 (1978).

Effect of owner's deposit of contract price in bankruptcy court.

- The statutory provision for commencing an action for the recovery of amounts claimed for provision of material and labor within 12 months from time claim becomes due is for the benefit and security of the owner, and where, upon bankruptcy of contractors to whom materials and labor provided the owner has deposited the contract price in the bankruptcy court, under an agreement that the owner and the building should be released and the deposit funds should be claimed against in lieu of the building and the owner, the owner has given to the filing of claims against the deposit in the bankruptcy court the effect of an action against the contractor, or at least, by consenting to and arranging for that procedure, the owner has waived the requirement of such action. Cutler-Hammer, Inc. v. Wayne, 101 F.2d 823 (5th Cir.), cert. denied, 307 U.S. 635, 59 S. Ct. 1031, 83 L. Ed. 1517 (1939).

Twelve-month period for commencing proceedings not tolled by bankruptcy provisions.

- The 12-month period for commencing proceedings for enforcement of liens provided by this section is a condition precedent to perfecting a substantive right and hence not affected by the Bankruptcy Act of 1898, 11 U.S.C. § 29(e) (see Bankruptcy Reform Act of 1978, 11 U.S.C. § 108) regarding tolling of statutes of limitations. Lee v. Stokes, 135 Ga. App. 642, 218 S.E.2d 654 (1975).

Pleadings and evidence relating to judgment need not be set out in foreclosure proceedings.

- Although a judgment is a condition precedent to recovery against the property owner, under the provisions of this section, it is not the cause of action, nor the basis of the relief prayed, in such manner as to make it necessary to set out the pleadings, evidence, or judgment of such former action in the foreclosure proceedings. Brooks v. West Lumber Co., 88 Ga. App. 510, 77 S.E.2d 43 (1953).

Liability for obligation created in first action against contractor.

- It is only in the required first action by a materialman against the contractor that the adjudication is made as to items furnished and the amount due with respect to a particular contract. As to the contractor, the obligation is primary. As to the owner, it is collateral only and conditioned on the recording by the materialman of a claim of lien within the statutory period, unless privity exists between the materialman and the owner which allows the materialman to establish a lien and foreclose in same action. Ben O'Callaghan Co. v. Schmincke, 376 F. Supp. 1361 (N.D. Ga. 1974).

Effect of provisions as to proper, but not necessary, parties.

- That part of former paragraph (7) of this section which designates a subcontractor as a proper but not a necessary party, and another clause which designates a contractor as a proper but not a necessary party, does not mean that the materialman may sue the owner directly without joining either the contractor or subcontractor, and without having obtained a prior judgment against either the contractor or subcontractor, and without having shown any of the reasons for the materialman's failure to do so sanctioned by former paragraph (4) of this section. Athens Elec. Supply Co. v. Delta Oil, Inc., 101 Ga. App. 515, 114 S.E.2d 289 (1960).

Owner's contention that pleadings omitted other parties defendant.

- Where under defendant owner's pleadings, in an action by a materialman seeking payment for material furnished for use in improving real estate, it was admitted that the materialman contracted with defendant contractor and such pleadings were not withdrawn, the contention on appeal that contractor had a partner who was neither sued or shown to be in that class of persons which the plaintiff materialman need not have sued, is without merit. Grigsby v. Fleming, 96 Ga. App. 664, 101 S.E.2d 217 (1957).

Objection to new parties in foreclosure proceeding waived if not raised until appeal.

- While a lien foreclosure proceeding is strictly statutory, and the requirements of this section must be substantially followed, and while in a purely legal proceeding new parties cannot be added over objection unless the statute specifically provides for such procedure, it is also the rule that where a new party has in fact been added without objection, the court, on appeal, will not consider an objection on this ground raised for the first time but will consider it to have been waived. Athens Elec. Supply Co. v. Delta Oil, Inc., 101 Ga. App. 515, 114 S.E.2d 289 (1960).

In lien foreclosure materialman must distinguish between an individual and the individual's corporation and must bring an action against the correct account debtor. Tri-State Culvert Mfg., Inc. v. Crum, 139 Ga. App. 448, 228 S.E.2d 403 (1976).

Elements of contract which materialman must show to obtain lien.

- To establish and foreclose a lien on the owner's property it is never enough merely to show that the supplies which the materialman furnished were furnished for the purpose of, and in fact used in improving the owner's property. It must be shown also that the owner contracted with someone for these supplies to be furnished; that the person to whom the plaintiff furnished them was connected with that contract, and that the value of the material was within the contract price to which the owner agreed. Athens Elec. Supply Co. v. Delta Oil, Inc., 101 Ga. App. 515, 114 S.E.2d 289 (1960).

Amount due lienholder is essential element to be proved to recover on lien.

- One of the things most necessary to be proved in order for the lien to be perfected, foreclosed, and the judgment enforced, is the amount, by which is meant not just the amount of money owing by the lienee to the lienholder, but the amount to which the lienholder is entitled as a lien on the property as improved. Jackson's Mill & Lumber Co. v. Holliday, 108 Ga. App. 663, 134 S.E.2d 563 (1963).

Action on personal note provides no basis for calculating amount due on foreclosure.

- Although the action required by this section can take any form which will give a legitimate basis for calculation of a particular sum which the lienor is entitled to foreclose, an action on a personal note does not provide such a basis. Proof of the personal note gives no basis for a determination of what amount, if any, of the note is attributable to the defendant's property. Ben O'Callaghan Co. v. Schmincke, 376 F. Supp. 1361 (N.D. Ga. 1974).

Lienholder must show materials delivered were used in construction.

- Where it is shown that the materials were delivered to the premises of the owner, a lienholder may recover only if the lienholder shows the specific material was actually used in the construction of the building. Jackson's Mill & Lumber Co. v. Holliday, 108 Ga. App. 663, 134 S.E.2d 563 (1963).

Effect of claim which shows material delivered to different person than party named in complaint.

- Where a materialman's claim of lien attached to a complaint shows that plaintiff materialman furnished materials to a party different from the party named on the face of the complaint, action against the party named in the claim of lien is a condition precedent to foreclosure against the party named on the face of the complaint. Brockett Rd. Apts. v. Georgia Pac. Corp., 138 Ga. App. 198, 225 S.E.2d 771 (1976).

Contractor's complaint not dismissed for failure to allege that contractor paid for labor and materials.

- In an action by a contractor to foreclose a materialman's lien against the owner of real estate under the provisions of this section, the complaint is not subject to demurrer (now motion to dismiss) because the contractor fails to allege that the contractor has paid for all labor and materials used in the construction of the house which the contractor erected under contract with the owner. Scott v. Williams, 111 Ga. App. 735, 143 S.E.2d 16 (1965).

Allegations which are not required in foreclosure proceedings.

- In a proceeding to foreclose a materialman's lien for material furnished a contractor in the improvement of real estate, it is not necessary to allege that the contractor had completed the contract with the owner of the premises, or that such owner had not paid the contractor for the improvements made, upon the sworn statement that the contractor had paid for the materials used. Arnold v. Farmers' Exch., 123 Ga. 731, 51 S.E. 754 (1905).

Proper situs for foreclosure and process.

- While a laborer can foreclose a statutory lien either in the county of the employer's residence or where the employer's property upon which the lien is to be foreclosed may be, the process should be made returnable to the proper court of the county of the defendant's residence, if the defendant resides in this state, and the issue made by a counteraffidavit of the defendant employer should be returned to and tried in that court. Jackson v. Taylor, 49 Ga. App. 261, 175 S.E. 259 (1934).

Property owner can force all similar lienholders to interplead.

- A property owner may not defend against the lien of a laborer or materialman by showing that there are existing claims or liens of others in like circumstances, but the owner may force all such materialmen to interplead, placing the owner in the position of a stakeholder to the fund. Scott v. Williams, 111 Ga. App. 735, 143 S.E.2d 16 (1965).

Foreclosure may be joined to action against contractual debtor.

- It is permissible in the action against the contractual debtor described in former paragraph (3) of this section to join therein the foreclosure of the lien either originally or by amendment thereto, provided venue is obtainable. Logan Paving Co. v. Liles Constr. Co., 141 Ga. App. 81, 232 S.E.2d 575 (1977).

Foreclosure action can be brought concurrently with action against contractor.

- Before a lien can be foreclosed for materials furnished to a contractor, there must be a valid judgment against the contractor for the price of the material, but the two actions may be brought concurrently. West Lumber Co. v. Aderhold, 90 Ga. App. 255, 82 S.E.2d 670 (1954).

Owner's defenses.

- In an action by a materialman to foreclose a lien for material furnished a contractor for the improvement of real estate of others, the owners of such real estate may defend by showing that they have paid the full contract price to the contractor and that the money paid has been applied by the contractor to the settlement of debts incurred in the performance of the contract, which would have been liens upon the property improved. Ingram v. Barfield, 80 Ga. App. 276, 55 S.E.2d 725 (1949).

Immediate payment is only defense to proper claim.

- This section seems clearly to require that the only defense possible against a lien that is properly filed is actual payment, not a commitment for payment in the future. Melton v. Lowe, 117 Ga. App. 783, 161 S.E.2d 912 (1968).

Materialman need not negate owner's defenses when enforcing lien.

- The materialman derives a lien from the statute, and in its enforcement the materialman is not required to allege anything more than that the claim comes within the provisions of the statute and that the materialman has complied with its terms in asserting the lien. It is not essential that the plaintiff materialman should negate the defenses which the statute permits to be interposed by the owner of the premises improved. Scott v. Williams, 111 Ga. App. 735, 143 S.E.2d 16 (1965).

Proper method for objection to premature action.

- Where an action is prematurely brought, if the defect appears on the fact of the complaint objection may be made by specific demurrer (now motion to dismiss) or by a plea in abatement, and, if it does not so appear, by a proper plea in abatement, or by motion for nonsuit at the proper time. It is not a matter for general demurrer (now motion to dismiss) which merely asserts that the complaint sets out no cause of action. Brandwein v. Greenfield, 104 Ga. App. 608, 122 S.E.2d 316 (1961).

Where waiver of owner's right to object to lien presumed.

- An owner who resists foreclosure upon the ground that the material was not such as provided for by the contract may waive the right to assert this defense, and thereby be estopped to dispute evidence on the part of the materialman to the contrary. Acceptance and use of such material without objection or complaint, and payment therefor to another instead of to the materialman, will authorize the conclusion that the owner waived the right and was estopped. Rylander v. Koppe & Steinichen, 162 Ga. 300, 133 S.E. 236 (1926).

Estoppel of owner to contend materials not used to improve property.

- Where a materialman furnishes and delivers materials to the owner's premises in reliance on the owner's representation that the material is intended to be used for the improvement of the property, the owner is estopped, as between the parties, to contend that it was not in fact so used. Jackson's Mill & Lumber Co. v. Holliday, 108 Ga. App. 663, 134 S.E.2d 563 (1963).

Lienholder need not allege precise date and time material or labor was provided.

- It is not absolutely necessary for the plaintiff supplier, suing to foreclose a materialmen's and laborer's lien, to allege the precise minute or hour or day the labor and materials were furnished and materials installed, but it is sufficient to allege that these things took place within such a definite period as would show that the lien was recorded in time, even though the exact date or hour cannot be alleged. Pickard v. Gregory, 88 Ga. App. 475, 76 S.E.2d 860 (1953).

Effect of payment of judgment obtained by materialman or subcontractor.

- As between the owner and the prime contractor all payments under the contract are credited to the owner, and payment of a judgment obtained by a materialman or subcontractor who has first recovered in an action against the prime contractor and then foreclosed a lien against the premises is the equivalent of payment to the contractor in determining whether the owner has paid the contract price. Scott v. Williams, 111 Ga. App. 735, 143 S.E.2d 16 (1965).

Facts in written instrument prevail over party's allegations in pleading.

- Where a party relies on a written instrument as the basis of an action, and attaches a copy of the instrument as an exhibit, the facts shown in the exhibit will prevail over the allegations of the party in the pleading. Brockett Rd. Apts. v. Georgia Pac. Corp., 138 Ga. App. 198, 225 S.E.2d 771 (1976).

Effect of invoices showing materials shipped for use on realty in question.

- Where the invoices in evidence clearly exhibit that the materials for which a lien foreclosure was sought were shipped to the subcontractor for use in construction on the realty in question, this creates the presumption in absence of evidence to the contrary that the materials were received and used by the subcontractor in accordance with the purpose for which they were supplied. Horne-Wilson, Inc. v. Smith, 109 Ga. App. 676, 137 S.E.2d 356 (1964).

Judgment perfecting claimed lien may become dormant.

- A judgment perfecting a claimed lien of a materialman is within O.C.G.A. § 9-12-60, providing that a judgment shall become dormant under circumstances therein named. Carter-Moss Lumber Co. v. Short, 66 Ga. App. 330, 18 S.E.2d 61 (1941).

There is no provision for summary judgment where lien is sought against real property. Zappa v. Ewing, 116 Ga. App. 152, 156 S.E.2d 510 (1967).

No right to attorney's fees for defense by contractor of unnecessary party.

- A general contractor cannot recover the costs of attorney's fees in defending property owners against the claims of lien by a company which supplied material to a bankrupt supplier of the contractor, if the bankrupt supplier is not a required defendant in the foreclosure action and is not advantaged in any way by the contractor's defense. Ronfra Dev. Corp. v. Pennington, 131 Ga. App. 195, 205 S.E.2d 448 (1974).

Lien under section when perfected relates back to completion of work.

- The lien under this section, if perfected within the time presented, is superior to the claim of a purchaser with notice of the lien, even though the purchase is made before the lien was recorded. The lien relates back to the completion of the work. Oglethorpe Sav. & Trust Co. v. Morgan, 149 Ga. 787, 102 S.E. 528 (1920). See also Wager v. Carrollton Bank, 156 Ga. 783, 120 S.E. 116 (1923), later appeal, 169 Ga. 304, 150 S.E. 146 (1929).

One who subordinates first to third lien makes it inferior to both second and third liens. Thus, where a first mortgagee subordinates interest to a second mortgagee, the prior mortgage is necessarily inferior to an intervening materialman's lien. Old Stone Mtg. & Realty Trust v. New Ga. Plumbing, Inc., 140 Ga. App. 686, 231 S.E.2d 785 (1976), aff'd, 239 Ga. 345, 236 S.E.2d 592 (1977).

Where security deed executed before delivery of any material, and therefore necessarily before the record of the materialmen's claim of lien, no question of notice to the grantee as to the materialmen's claims of lien at the time the security deed was executed would be involved. Caldwell v. Northwest Atlanta Bank, 194 Ga. 370, 21 S.E.2d 619 (1942).

Priority of holder of security deed over lien depends on date of recordation and notice.

- The bona fide holder of a security deed executed before the first material was furnished, and therefore necessarily prior to the record of the materialman's claim of lien, will take priority over the materialman's claim of lien, although the security deed was itself not recorded until after the first material was furnished. The rule would be different where the holder of the security deed had actual notice of the furnishing of the material prior to the execution of the deed; and might be different where the holder of the security deed had such actual notice prior to the record of the security deed. Caldwell v. Northwest Atlanta Bank, 194 Ga. 370, 21 S.E.2d 619 (1942).

Recorded deed to secure debt superior to materialman's lien recorded afterwards.

- Where title to real estate is conveyed by duly recorded deed to secure debt, and the grantee takes the deed and advances the money loaned, without notice of a materialman's claim of lien upon the property, and before the record thereof, the title thus acquired is superior to such lien. Harris v. Parham, 213 Ga. 725, 101 S.E.2d 722 (1958).

Notice required of grantee who records security deed after first material furnished.

- Even if the failure of the grantee to record a security deed until between the time the first material was furnished and the record of the materialmen's claims of lien could suffice to make relevant the rule as to actual notice of such a claim, then the "actual notice" required of the grantee in the deed in such a case would be such notice as is positively proved to have been given to the grantee directly and personally, or such as the grantee is presumed to have received personally, because the evidence within the grantee's knowledge was sufficient to put the grantee on inquiry. Caldwell v. Northwest Atlanta Bank, 194 Ga. 370, 21 S.E.2d 619 (1942).

Unrecorded lien inferior to security deed taken without notice.

- An unrecorded claim of a materialman's lien is inferior to a security deed on the property improved, taken without actual notice of the unrecorded claim of lien. Builders Supply Co. v. Pilgrim, 115 Ga. App. 85, 153 S.E.2d 657 (1967).

Title conveyed by recorded deed to secure debt inferior to lien when lender has notice.

- Where title to real property is conveyed to a lender by a duly recorded deed to secure debt, and the lender takes the deed with actual notice of a materialman's claim of lien upon the property, the title acquired by the lender is inferior to the lien, provided that the lien is subsequently perfected within the time prescribed by law. Old Stone Mtg. & Realty Trust v. New Ga. Plumbing, Inc., 140 Ga. App. 686, 231 S.E.2d 785 (1976), aff'd, 239 Ga. 345, 236 S.E.2d 592 (1977).

Mere averment that materialman "furnished and delivered material on the premises" insufficient as notice.

- A mere averment that a materialman on a certain date "furnished and delivered material on the premises," without any other fact, will not suffice to support a bare legal conclusion by the pleader that "such delivery constituted actual implied notice" to the security-deed holder that material was being furnished. Caldwell v. Northwest Atlanta Bank, 194 Ga. 370, 21 S.E.2d 619 (1942).

Mortgage is not one of liens expressly made prior to lien given by this section. Tanner v. Bell, 61 Ga. 584 (1878).

When materialman's lien superior to lien of prior mortgage for purchase money.

- A materialman's lien is superior to the lien of a prior mortgage for purchase money, where the material has been furnished without actual notice of the mortgage. Baisden & Co. v. Holmes-Hartsfield Co., 4 Ga. App. 122, 60 S.E. 1031 (1908).

Contractor's lien superior to lien for trust funds.

- A contractor's lien on the property of a decedent is superior to the claim of the widow on account of a debt for trust funds. Boynton v. Westbrook, 74 Ga. 68 (1884).

Lien for improvements is not charge upon premises as against incumbrances by prior owner.

- The lien of a contractor or mechanic for improvements is not a charge upon the premises or the improvements as against prior liens or incumbrances put upon the property by a previous owner, and duly recorded. National Bank v. Danforth, 80 Ga. 55, 7 S.E. 546 (1887).

One who derived title from innocent purchaser is protected, although that person may have notice of the lien. Ashmore v. Whatley, 99 Ga. 150, 24 S.E. 941 (1896).

If purchaser assents to furnishing of materials, lien will attach. Elmore v. Southern Bank & Trust Co., 28 Ga. App. 72, 110 S.E. 334 (1922).

Lien is not valid against bona fide purchaser until notice of claim of lien is filed. Marietta Baptist Tabernacle v. Tomberlin Assocs., 576 F.2d 1237 (5th Cir. 1978).

Bona fide purchaser's claim of title superior to lien unrecorded at time of purchase.

- The claim of a bona fide purchaser of real property is superior to the claim of a materialman whose lien was not recorded at the time of the purchase. The purchaser has title, not a lien. Ashmore v. Whatley, 99 Ga. 150, 24 S.E. 941 (1896); Bennett Lumber Co. v. Martin, 132 Ga. 491, 64 S.E. 484 (1909).

Purchaser with notice of unrecorded claim is subject to lien if subsequently perfected.

- A contractor's lien attaches from the time the work under the contract is commenced, although it lacks, certainly until it is recorded, the quality of constructive notice, but one who takes a deed to the property or purchases it while work is in progress, with knowledge of the contract and notice of the contractor's claim of lien, though imperfect or unrecorded at that time, must be held to take the property subject to the lien, provided that the contract is completed and the lien is declared and enforced within the time prescribed by Georgia law. Gellis v. B.L.I. Constr. Co., 148 Ga. App. 527, 251 S.E.2d 800 (1978).

Lien attaches when material furnished notwithstanding divestment in favor of bona fide purchaser without notice.

- The lien of a materialman upon property, for the improvement of which the material was furnished, as provided in O.C.G.A. § 44-14-361 and this section, attaches when the material is furnished in accordance with the contract. This is true notwithstanding the lien may become divested in favor of a bona fide purchaser of the property without notice of the lien. Davis v. Stone, 48 Ga. App. 532, 173 S.E. 454 (1934).

Lien may attach to estate for years.

- The liens provided for in this section may attach to the interest of a lessee who has an estate for years in the demised premises, subject to the conditions of the lease. Bennett Iron Works, Inc. v. Underground Atlanta, Inc., 130 Ga. App. 653, 204 S.E.2d 331 (1974).

Am. Jur. 2d.

- 53 Am. Jur. 2d, Mechanics' Liens, §§ 191, 195 et seq., 217, 265, 266, 346, 348 et seq., 358-360, 384-386, 388, 389, 408-410.

17B Am. Jur. Pleading and Practice Forms, Mechanics' Liens, § 31.

C.J.S.

- 56 C.J.S., Mechanics' Liens, §§ 103, 133, 139 et seq., 157 et seq., 220 et seq., 322 et seq., 343.

ALR.

- Validity and effect of provision in contract against mechanic's lien, 13 A.L.R. 1065; 102 A.L.R. 356; 76 A.L.R.2d 1087.

Right of subcontractor or materialman to mechanic's lien for labor or material entering into work rejected as not in compliance with principal contract, 16 A.L.R. 981.

Elements bearing directly upon the quality of a contract as affecting the character of one as independent contractor, 20 A.L.R. 684.

Construction of contract for compensation of architect, 20 A.L.R. 1356.

Freight charges on material as within mechanic's lien statute giving lien for labor or material, or within contractor bond securing such claims, 30 A.L.R. 466.

Priority as between landlord's lien on chattels and chattel mortgage, 37 A.L.R. 400; 52 A.L.R. 935.

Mechanic's lien: owner's right to deduction on account of damages sustained through contractor's delay, 37 A.L.R. 766.

Independence of contract considered with relation to the scope and construction of statutes, 43 A.L.R. 335.

After-acquired title as supporting mechanics' lien, 52 A.L.R. 693.

Interest of vendor under executory contract for sale of realty as subject to mechanics' lien for labor or materials furnished to purchaser, 58 A.L.R. 911; 102 A.L.R. 233.

Interest of owner of land as subject to lien for material or service engaged by holder of mineral rights, 59 A.L.R. 548.

Contractor's bond as covering clothing, food, or lodging for laborers, 65 A.L.R. 260.

What amounts to waiver of right to mechanics' lien, 65 A.L.R. 282.

Priority as between mechanics' lien and purchase-money mortgage, 72 A.L.R. 1516; 73 A.L.R.2d 1407.

What amounts to bringing of suit within limited time required by mechanics' lien statute, 75 A.L.R. 695.

Mechanic's lien for labor or material for improvement of easement, 77 A.L.R. 817.

Mechanics' lien as affected by agreement to pay with property other than money, 81 A.L.R. 766.

Right of one other than contractor, laborer, or materialman to file mechanic's lien, 83 A.L.R. 11.

Time when contractor commenced work or time when labor or material for which lien is claimed was furnished as date of mechanic's lien, 83 A.L.R. 925.

Failure to raise by demurrer or answer failure to bring suit to enforce lien within time prescribed by mechanics' lien law a waiver, 93 A.L.R. 1462.

When contract, transaction, or account deemed a "continuing" one as regards time for filing mechanics' lien, 97 A.L.R. 780.

Effect of bankruptcy of contractor or subcontractor upon mechanics' liens of his subcontractors, laborers, and materialmen, 98 A.L.R. 323.

Priority of statutory lien on automobile for storage or repairs as against the rights of purchasers, attaching creditor or trustee in bankruptcy which arose while car was in possession of owner after accrual of storage or completion of repairs, 100 A.L.R. 80.

Principal contractor as necessary party to suit to enforce mechanic's lien of subcontractor, laborer, or materialman, 100 A.L.R. 128.

Remedy available to holder of mechanic's lien which has priority over antecedent mortgage or vendor's title or lien as regards improvement, but not as regards land, where it is impossible or impractical to remove the improvement, 107 A.L.R. 1012.

Constitutionality of statute giving to lien for alteration of property pursuant to public requirement, mechanics' lien or similar lien, preference over preexisting mortgage or other lien, 121 A.L.R. 616; 141 A.L.R. 66.

Right of one who contracts with, or furnishes labor or material to, public contractor's surety after latter has taken work, in respect of part of contract price retained by public agency, 122 A.L.R. 511.

Time for filing claim for mechanic's lien as affected by removal by, or return to, claimant of part of material furnished, 122 A.L.R. 755.

Right or interest subject to, and priority of, statutory lien for labor or material in developing property for oil and gas, 122 A.L.R. 1182.

Priority of lien of sales or consumers' tax, 136 A.L.R. 1015.

Time limitation in mechanic's lien statute as a limitation of the right or only of the remedy, 139 A.L.R. 903.

Who is contractor or subcontractor, as distinguished from materialman, for purposes of mechanic's lien, contractor's bond other provision for securing compensation under construction contract, 141 A.L.R. 321.

Personal judgment as essential to enforcement of mechanic's lien, 147 A.L.R. 1099.

Estoppel of mechanic's lien claimant as predicable upon his representations to owner as to payment made to claimant by contractor or subcontractor, 155 A.L.R. 350.

Formal requisites of notice of intention to claim mechanic's lien, 158 A.L.R. 682.

Existence of more than one contract between owner and contractor as affecting notice or filing of mechanic's lien by materialman or subcontractor, 175 A.L.R. 330.

Sufficiency of notice, claim, or statement of mechanic's lien with respect to nature of work, 27 A.L.R.2d 1169.

Bankruptcy court's injunction against mortgage or lien enforcement proceedings commenced, before bankruptcy, in another court, 40 A.L.R.2d 663.

Sufficiency of notice, claim, or statement of mechanic's lien with respect to description or location of real property, 52 A.L.R.2d 12.

Sale of real property as affecting time for filing notice of or perfecting mechanic's lien as against purchaser's interest, 76 A.L.R.2d 1163.

Time for filing notice or claim of mechanic's lien where claimant has contracted with general contractor and later contracts directly with owner, 78 A.L.R.2d 1165.

Priority between mechanics' liens and advances made under previously executed mortgage, 80 A.L.R.2d 179.

Amendment of statement of claim of mechanic's lien as to designation of owner of property, 81 A.L.R.2d 681.

Sufficiency of notice under statute making notice by owner of nonresponsibility necessary to prevent mechanic's lien, 85 A.L.R.2d 949.

What constitutes "commencement of building or improvement" for purposes of determining accrual of mechanic's lien, 1 A.L.R.3d 822.

Sufficiency of designation of owner in notice, claim, or statement of mechanic's lien, 48 A.L.R.3d 153.

Abandonment of construction or of contract as affecting time for filing mechanic's liens or time for giving notice to owner, 52 A.L.R.3d 797.

Building and construction contracts: contractor's equitable lien upon percentage of funds withheld by contractee or lender, 54 A.L.R.3d 848.

Assertion of statutory mechanic's or materialman's lien against oil and gas produced or against proceeds attributable to oil and gas sold, 59 A.L.R.3d 278.

Garageman's lien: modern view as to validity of statute permitting sale of vehicle without hearing, 64 A.L.R.3d 814.

Effect of bankruptcy of principal contractor upon mechanic's lien of subcontractor, laborer, or materialman as against owner of property, 69 A.L.R.3d 1342.

Demand for or submission to arbitration as affecting enforcement of mechanic's lien, 73 A.L.R.3d 1042.

Enforceability of mechanic's lien attached to leasehold estate against landlord's fee, 74 A.L.R.3d 330.

Removal or demolition of building or other structure as basis for mechanic's lien, 74 A.L.R.3d 386.

Release or waiver of mechanic's lien by general contractor as affecting rights of subcontractor or materialman, 75 A.L.R.3d 505.

Who is the "owner" within mechanic's lien statute requiring notice of claim, 76 A.L.R.3d 605.

Liability of purchaser of real estate on mechanic's lien based on goods or labor supplied to vendor but filed after title passed, 33 A.L.R.4th 1017.

Architect's services as within mechanics' lien statute, 31 A.L.R.5th 664.