Gentry Brothers, Inc. v. Byron Development Corp.

192 S.E.2d 100 (1972)

16 N.C. App. 386

GENTRY BROTHERS, INC. v. BYRON DEVELOPMENT CORPORATION et al.

No. 7215SC611.

Court of Appeals of North Carolina.

October 25, 1972.

*101 Nelson & Clayton by George E. Clayton, Jr., Winston-Salem, for plaintiff appellants.

Bryant, Lipton, Bryant & Battle by F. Gordon Battle, and Theodore H. Jabbs, Chapel Hill, for defendants D. St. Pierre DuBose and wife, Valinda Hill DuBose.

GRAHAM, Judge.

Plaintiff does not challenge the portion of the judgment which holds that it is not entitled to a money judgment against defendants DuBose. Its contentions relate only to the action of the court in declaring null and void the notice of lien filed against the DuBose property.

No issue of fact exists as to who owned the land at the time plaintiff made the improvements thereon, or as to who contracted for the improvements. It is undisputed that Mr. and Mrs. DuBose owned the land at all times involved in the suitand they still do. It is also undisputed that it was Byron, and not Mr. and Mrs. DuBose, who contracted with plaintiff for the improvements and agreed to pay for them. Evidence was offered through the affidavit of defendants DuBose that Byron was not acting as their agent. Plaintiff offered no evidence to the contrary. Thus, the only question before the trial court was a question of law: May a contractor enforce a lien on real property for labor performed pursuant to a contract with a party who has an option to purchase the land but never exercises the option or otherwise acquires any ownership in the land? We hold that the trial court correctly decided this question in the negative.

"`The law seems to be settled in this State that there must be a debt due from *102 the owner of the property before there can be a lien. The debt is the principal, the basis, the foundation upon which the lien depends. The lien is but the incident, and cannot exist without the principal.'" Brown v. Ward, 221 N.C. 344, 346, 20 S.E.2d 324, 326, and cases cited therein. In accord: Ranlo Supply Co. v. Clark, 247 N.C. 762, 102 S.E.2d 257; General Air Conditioning Co. v. Douglass, 241 N.C. 170, 84 S.E.2d 828; Leffew v. Orrell, 7 N.C.App. 333, 172 S.E.2d 243; Clark v. Morris, 2 N.C.App. 388, 162 S.E.2d 873.

Plaintiff argues that the land in question is subject to a lien because in the option contract, the optionee was given the right to construct a golf course prior to executing the option, provided assurances were given that money was available for the completion thereof, and provided further that expenditure of funds for this purpose would be subject to "reasonable joint control or certification as to purpose of expenditure." This contention cannot be sustained. These contractual provisions in no way authorized the optionee to enter into a contract on behalf of the owners. Furthermore, it is not contended that Byron acted for the owners in employing plaintiff to improve the property, or that the owners ever expressly, or by implication, assumed Byron's obligation to pay for the work plaintiff was employed to do.

The fact defendants DuBose may have known that plaintiff was engaged in work on the property is of no significance. Mere knowledge by a property owner that work is being done or material furnished in the improvement of his property does not enable the person furnishing the labor or material to obtain a lien. General Air Conditioning Co. v. Douglass, supra; Brown v. Ward, supra; Price v. Asheville Gas Co., 207 N.C. 796, 178 S.E. 567.

Affirmed.

VAUGHN and HEDRICK, JJ., concur.