# FILED
May 26, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk 

### IN THE COURT OF APPEALS OF TENN ESSEE

AT NASHVILLE

C & C ALUMINUM BUILDERS ) SUPPLY, ) ) Plaintiff/Appellee, ) ) Appeal No. ) 01-A-01-9804-CH-00225 VS. ) ) Coffee Chancery ) No. 95-164 JOHN RYND and wife CONNIE RYND, ) ) Defendants, ) ) and EDMOND PARSON, ) ) Defendant/Appellant. )
APPEALED FROM THE CHAN CERY COUR T OF COFFEE COUNTY AT MANCHESTER, TENNESSEE THE HONORABLE JOHN W. ROLLINS, JUD GE

GERALD L. EWELL, JR. HAYNES, HULL, RIEDER & EWELL, P.A. 214 North Atlantic Street P. O. Box 878 Tullahoma, Tennessee 37388 Attorney for Plaintiff/Appellee ROBERT S. PETERS SWAFFORD, PETERS & PRIEST 10 0 F ir st Av en ue , S .W. Winchester, Tennessee 37398 Attorney for Defendant/Appellant

AFFIRMED AND REMAN DED
BEN H. CANTRELL, PRESIDING JUDGE, M.S. CONCUR: KOCH, J. COTTRELL, J. 

## O P I N I O N- 2 - The only issue in this c ase is whether the real property involv

ed was “residential real prop erty” and th us immune from the attachment of a material furnisher’s lien. The Chancery Court of Coffee County held that the propert ydid not fit the definition of residential r eal property in Tenn. Code Ann. § 66 -1 1- 14 6( a) (1 ). We affirm.

I.

In November

and December

of 1994, C&C Aluminum Builders Supply (C&C) furni shed materials t o a contract

or building

a house on property in the name of Connie and John Rynd. The contractor failed to pay for the materials and C&C asserted a materialman’s lien onthe prope rty. The Rynds answered and alleged that the hou se was on a one acre tract that they had conveyed to Edmond Parson on September 17, 1994. The deed, howev er, was not recorded unti l March 22, 1995.

C&C then amended the complaint an d n amed Mr. Parson as a defendant. Mr. Parson adopted the defense of Ten n. Code Ann. § 66-11-146(a)(2), which prevents a mechanic’s and materialman’s lienfrom attaching to “residential real property” except i n favor of a general contract or who contracts w

ith the owner. The chancellor

held that Mr. Parson w as not the owner of

the property

at the time the lien attached; therefore, the statute did not appl y in the circumstances of this cas e . Accordingly, the chancellor entered judgment for C&C for the amount of its lien.

II.

“Residential real property,” immuni zed by thelegislature from the lien of
a remote furnisher of materials, is defined in the st atute as “a building consisting of- 3 -

one (1) dwelling uni

t in which the owner

of the real property inten ds t o reside or resides as the owner’s principal place of residence

. . . .” or “a building consisting of two (2), three (3) or four ( 4) dwelling

units where the owner

of the real property intends to reside or resides

in one (1) of the units as the owner’s principal place of residence

. . . .” Tenn. Co de Ann. § 66-11-14 6(a)(1). A s we have noted, the trial judge hel d that the stat ute did n ot apply to a person wh o was not th e record o wner of th e propert y.

We think the chancellor w as c orrect. The “owner” r eferred to by the legislature in Tenn. Code Ann. § 66-11-146(a)(1) must refer to the record owner

. A contraryholding would create a glaring excepti on to t he inte nt and effect of our registrationlaws. Tenn. Code Ann. § 66- 26-101 provides that unreg istered instruments(the list includes deeds ) are effective between the partieswithout registration, “butas to other persons not having actual notice of them, only from the noting thereof for registration on the books of the register, unless otherwise expressly provided.”

As if to make sure we und erstand , the legis lature go es on to sa y, “any of such instruments not so proved,or acknowledged and r egistered, or noted for registration, shall be null and void as to existing or subsequent creditors of, or bona fide purchasers f rom, th e makers without notice.” Tenn. Code Ann. § 66-26-103. (Emphasis added).

Liens that attach to real property before a deed conveying such property is recorded have priority over the interest of the v endee. Hames v. Archer Paper Co. , 319 S.W.2d 252 (Tenn. App. 1958); City Nat’l Bank & Trust Co. vs. City of Knoxville , 11 S.W.2d 853 (Tenn. 1928). A materialman’s lien relates back to the visible commencementof operations. Tenn. Code Ann. § 66-1 1-104. Therefore, C&C’s lien attached at least a s early as Novembe r of 1994. It follows that w hen Mr. Parson finally recorded his deed in March of 1995, the lien had att ached.We are not persuaded to deviate from this preference for the record title. If we did, material furnish ers would no longer be a ble to rel y on the record title because their rights could be defea ted by the holder of an unregistered deed. See Thomas v. Setliffe , 28 S.W.2d 344 (Ten n. 1930). We are con vinced that the legislature did not intend this result when it enacted T enn. Code Ann. § 66-11-146. Since the record owners, Mr. and Mrs. Rynd did not intend to use the propert y as their residenc e, the pro perty was no t residen tial real p roperty.

We affirm the judgment of the lower court and remand the case to the C hancery Court of Coffee County fo r any furt her proce edings ne cessary. T ax t h e costs on appeal to the appellant.

_________________________________ BEN H. CANTRELL, PRESIDING JUDGE, M.S.
CONCUR:

_____________________________ WILLIAM C. KOCH, JR., JUDGE

_____________________________ PATRICIA J. COTTRELL, JUDGE