1. The defendant Jones had only a usufruct in the realty involved, to which a materialman's lien as here sought cannot attach, and which is not subject to levy and sale, and the trial court erred in overruling his general demurrer to the petition.
2. The interest of the lessor Torbett in the real estate is not subject to a materialman's lien for material used in making improvements on the property, pursuant to a contract made by the lessee, who had only a usufruct in the property, and the trial judge did not err in sustaining the general demurrer of the defendant Torbett to the petition, and in dismissing the petition as to such defendant.
DECIDED MARCH 18, 1949. E. I. Rooks Son filed a petition in Butts Superior Court seeking to foreclose a materialman's lien against certain real property located in Indian Springs and known as the "Wigwam."
The petition alleged the following: The plaintiffs are materialmen and are in the business of furnishing material for the erection and improvement of buildings. O. A. Torbett is the owner of certain real estate, located in Butts County, which is described in detail as being a certain parcel of land in Indian Springs, on which is located a store building now known as the "Wigwam." W. R. Jones is the lessee of this property, the lessor being O. A. Torbett. A copy of the lease is attached to the petition, certain details of which are given below. H. H. Buckner was employed by the lessee to repair and improve the above-described property. He has now absconded and his whereabouts is unknown to the plaintiffs. The plaintiffs delivered to Buckner on the premises of the above-described property material valued at $1955.22 for the improving and repairing of the existing building. An itemized statement of this material is attached to the petition. The above amount is due and unpaid although demand has been made for it. A materialman's lien for this amount was filed in the office of the Clerk of Butts Superior Court on June 19, 1948, and recorded June 21, 1948, against O. A. Torbett, and another filed August 2, 1948, and recorded August 3, 1948, against W. R. Jones. These liens were filed and recorded within three months after the furnishing of the materials. This action is brought within twelve months from the date of the lien. Judgment is sought against the contractor Buckner, and for a special lien against the property improved.
The provisions of the lease, in part, are as follows: O. A. Torbett, the lessor, has leased to W. R. Jones, the lessee, the described property, for a term of three years, commencing April 1, 1948, and ending on March 31, 1951, for a rental of $1400 per year, payable in instalments of $700 on April 1 and November 1 of each year. "The lessor agrees to renew this lease agreement for a period of not more than seven years commencing April 1, 1951, at the same rental (fourteen hundred dollars per year), upon being notified by the lessee prior to March 31, 1951, that the said lessee desires to extend this lease agreement beyond *Page 792 March 31, 1951." The lessee is permitted to make such improvements on existing buildings as he may desire. Any additions or extensions of the framework of the buildings become a part of the realty and may not be removed at the expiration of the lease, but the lessee has the right to remove any and all fixtures and appliances and other equipment which he may have placed in existing buildings, and he has the right to build such additional buildings as he may desire, with the right and privilege to remove them during the term of the lease or any extension thereof.
The contractor, H. H. Buckner, was never served. The defendants, Torbett and Jones, filed separate general demurrers. The trial court sustained the demurrer of Torbett and overruled the demurrer of Jones. Jones excepted to the judgment of the court overruling his demurrer. The plaintiffs, E. I. Rooks Son, filed a cross-bill of exceptions, assigning error on the ruling and judgment sustaining the demurrer of the defendant Torbett, and dismissing the action as to him. 1. Code § 67-2001 (1, 2) provides: "1. All mechanics of every sort, who have taken no personal security therefor, shall, for work done and material furnished in building, repairing, or improving any real estate of their employers; all contractors, materialmen, and persons furnishing material for the improvement of real estate; . . shall each have a special lien on such real estate . . 2. When work done or material furnished for the improvement of real estate is done or furnished upon the employment of a contractor or some person other than the owner, the lien given by this section shall attach to the real estate improved as against such true owner for the amount of the work done or material furnished, unless such true owner shall show that such lien has been waived in writing, or shall produce the sworn statement of the contractor or other person, at whose instance the work was done or material was furnished, that the agreed price or reasonable value thereof has been paid: Provided, that in no event shall the aggregate amount of liens set up hereby *Page 793 exceed the contract price of the improvements made." The lien sought to be enforced here attaches to realty rather than personalty. The term true owner as used in the above Code section would include one having an estate in realty, and the lien prescribed would attach to such an interest in realty. See JamesG. Wilson Mfg. Co. v. Chamberlin-Johnson-DuBose Co., 140 Ga. 593 (79 S.E. 465). This interest in realty should be distinguished from the interest of one entitled only to the use and enjoyment of the premises, that is to say, one having only a usufruct. Under the provisions of the lease involved in the present case, the lessee has a lease on the property involved for a period of three years, with an option to renew or extend the lease for a period of not more than seven additional years. It does not appear that the lessee has exercised this option, and until this is done the lease cannot be treated except as a lease for three years. There is no provision in the lease showing an intent of the parties to convey more than the right to the use and enjoyment of the property, including the right to make improvements thereon for the benefit of the lessee. Code § 61-101 is as follows: "When the owner of real estate grants to another simply the right to possess and enjoy the use of such real estate, either for a fixed time or at the will of the grantor, and the tenant accepts the grant, the relation of landlord and tenant exists between them. In such case no estate passes out of the landlord, and the tenant has only a usufruct, which he may not convey except by the landlord's consent and which is not subject to levy and sale; and all renting or leasing of such real estate for a period of time less than five years shall be held to convey only the right to possess and enjoy such real estate, and to pass no estate out of the landlord, and to give only the usufruct, unless the contrary shall be agreed upon by the parties to the contract and so stated therein." The defendant Jones has only a usufruct in the realty involved, to which a materialman's lien as here sought cannot attach, and which is not subject to levy and sale, and the trial court erred in overruling his general demurrer to the petition.
2. One who furnished material for the improvement of real estate, upon the employment of a contractor whose contract for *Page 794 the improvement is with a lessee, and who sustains no contractual relationship with the owner of the fee, is not entitled to a materialman's lien as against such owner. Pittsburgh Plate GlassCo. v. Peters Land Co., 123 Ga. 723 (51 S.E. 725); Centralof Ga. Ry. Co. v. Shiver, 125 Ga. 218 (53 S.E. 610);Consolidated Lumber Co. of Ga. v. Ocean Steamship Co.,142 Ga. 186 (82 S.E. 532); Stevens Supply Co. v. Stamm,41 Ga. App. 239 (152 S.E. 602). The title of the true owner of the land cannot be subjected to a lien for improvement, unless it is shown that he expressly or impliedly consented to the contract under which the improvements were made. Rutland Contracting Co. v. Sallie E. Gay Estate, 193 Ga. 468 (18 S.E.2d 835), and citations. The petition shows that the contract for improvements was made by the lessee, the defendant Jones, who had no estate in the realty, but only a usufruct, and the material was furnished to the contractor employed by Jones. It appears that Jones acted in his own behalf and not as an agent for the lessor in making the contract for the improvements. "It is generally held that a provision in a lease merely authorizing the lessee to make improvements does not render the lessee the agent of the lessor for that purpose." 79 A.L.R. 962, 969; 163 A.L.R. 992, 997; supported by citations from numerous jurisdictions, includingStevens Supply Co. v. Stamm, supra. The interest of the lessor Torbett in the real estate is not subject to a materialman's lien for material used in making improvements on the property, pursuant to a contract made by the lessee, who had only a usufruct in the property, where it does not appear that such contract for improvements was made by authority of the lessor, or with his express or implied consent, and the trial judge did not err in sustaining the general demurrer of the defendant Torbett to the petition, and in dismissing the petition as to such defendant.
Judgment reversed on the main bill of exceptions; affirmed onthe cross-bill. Felton and Parker, JJ., concur. *Page 795