50 Mo. App. 490 | Mo. Ct. App. | 1892
— This action was instituted to enforce a mechanics’ lien, and the following is a sufficient statement of the principal facts upon which it is founded:
Defendant Sheidley was the owner of a lot fronting on Main street in Kansas ■ City, upon which there was a • two-story brick building, which was rented by a month to month tenancy to E. W. Hauser. On March 1, 1890, Sheidley and Hauser entered into a lease agreement whereby Sheidley leased the property to Hauser for two years and eleven months at an increased rate of rent, and with the agreement that Hauser was to erect •a one-story building in the rear of the one then standing on the lot, to cost $1,000. The contract provided that the lease should not become operative unless this building was completed in one month, and that Hauser •execute to Sheidley a bond to protect Sheidley from
Plaintiff filed his lien on both the building, which was on the lot when the addition was commenced, and also on the addition and the leasehold interest of Hauser in the lot and buildings, the lien statement stating that the lumber was used in the original building and the one-story addition thereto. Suit was brought before a justice of the peace against Brown, the contractor, Hauser, the lessee with whom Brown contracted, and Sheidley, the owner of the property. Judgment was rendered by the justice against Brown and against both the original building and the one-story addition thereto, and the leasehold interest of Hauser therein. Prom this judgment Sheidley alone appealed to the circuit court. In the circuit court judgment was rendered personally against Brown, who had not appealed from the judgment of the justice, the sureties in the appeal bond of Sheidley, and a special judgment against the addition and against “such interest as Hauser had in the property at the time the addition was completed.”
It is insisted that a tenancy or lease interest from month to month is not such an interest as may be subjected to a mechanics’ lien. We are not of such opinion. Section 6708, Revised Statutes, 1889, is broad in its terms, and will cover such a lease interest. It was decided in Squires v. Fithian, 27 Mo. 134, that a mechanics’ lien was not contemplated where the tenancy was one at will. But this case arose under a local statute applicable to St. Louis county, which contemplated leases of not less dignity than an estate for years. Our present statute is not so restricted. That
Bnt defendant urges that a tenant’s interest in a tenancy from month to month cannot be sold, assigned or transferred by him withont the consent of his landlord (section 6368, Revised Statutes, 1889, of the landlord and tenant act); and that snch interest cannot be sold on execution. Holliday v. Achle, 99 Mo. 273. This statute and decision are not applicable. For, since section 6708 of the lien statute provides, as we-have seen, for the enforcement of a lien against such an interest we must hold that in such case a sale of such an interest is sanctioned by the statute. This is clearly so as applied to the facts of this case; for, when this defendant -authorized the erection of this improvement by his tenant, he must be held to have contemplated that the rights incident to mechanics’ liens might attach. We think, therefore, that the judgment against the improvement and Hauser’s interest in the lot, by reason of his tenancy, was proper.
It is next said that the addition is not such an independent structure as could be removed from the premises as authorized by statute, without injury to the original building. The court found to the contrary, and was amply justified in so doing. We do not see how the cases of Ambrose Mfg. Co. v. Gapen, 22 Mo. App. 397, and Dugan v. Scott, 37 Mo. App. 662, have-any bearing on the facts of the case.
II. As was ruled, in Murdock v. Hillyer, 45 Mo. App. 287, there must be an adjudication establishing the debt against the contractor, in order to enforce the lien for such debt. In this case Brown was the contractor to erect the improvement, and a personal judgment was rendered against him in the justice’s court
III. The circuit court entered up judgment, summarily, against the sureties on the appeal bond, and this is claimed to be error. The conditions of the bond are as follows: “Whereas, G-eorge Sheidley has appealed from the judgment of J. T. Clayton, a justice of the peace, in an action between Charles P. Deather-age, plaintiff, and R. H. Brown et al. Now, if on such appeal, the judgment of the justice be affirmed, or, if on trial anew in the circuit court, judgment be given against said appellant, and he shall pay the judgment, or his appeal shall be dismissed, and he shall pay the judgment of the justice, together with costs of appeal, then this recognizance shall be void, otherwise it shall remain in full force.”
The sureties Rave the right to stand on the letter of this 'obligation. Cranor v. Reardon, 39 Mo. App. 306; Bauer v. Cabanne, 105 Mo. 110. Neither of the
In addition, then, to the directions given above, the circuit court will set aside the judgment on the appeal bond. In all other respects the cause was properly tried.
Reversed and remanded.