60 Mo. App. 106 | Mo. Ct. App. | 1894
The defendant Christophel erected a dwelling house for his codefendant Robert T. Stillwell. The legal title to the lot on which the house was built was in the wife of Stillwell. Christophel bought some of the materials for the building from the plaintiff, and failed to pay for them. The plaintiff filed a mechanic’s lien against the lot and building, and this action is against Christophel for the debt and also to enforce the lien. Christophel made no defense. The Stillwells made several defenses against the enforcement of the lien. It was contended by them that, at the time the
After the jury was sworn, Stillwell’s counsel made the following admission: “We will not require the plaintiff to prove that it furnished the millwork, and that Christophel used the millwork in the construction of this house. I shall not even require it to prove anything about the value.” This admission is broad enough to do away with the objection as to the mingling of the various accounts. The plaintiff, both in his lien paper and petition, segregated from the general account the particular items, which it alleged had gone into the building in question. The defendants admitted that the account, as stated, was correct. This defense may, therefore, be put aside.
The cross-examination of the plaintiff’s bookkeeper tended to prove that, during the time the materials were being furnished for the Stillwell house, Christophel executed his note to plaintiff for $1,500, due in thirty days; that at the time Christophel owed plaintiff $2,300 on account of materials furnished for
The controversy as to the lien hinges on the remaining defense. It was admitted on the trial that the legal title to the lot is in Mrs. Stillwell; that the deed conveyed to her an ordinary estate; that Stillwell paid for the lot, and also furnished the money to pay for the house; that the contract for building this house was made with Stillwell individually; that Mrs. Still-well knew that the house was being built and made no objection, and that she and her husband, together with their child, were occupying it as a homestead. In perfecting the lien, and also in framing the petition, Still-well was regarded as the equitable owner of the lot, for the reason that he furnished the money to pay for it. This position, however, the plaintiff abandoned on the trial, it being well settled that in such a case there is no resulting trust in favor of the husband, it appearing merely that he furnished the purchase money.
The contract being with Stillwell alone, the plaintiff now concedes that he is not entitled to a lien on the lot'. This is quite clear, for Stillwell’s interest was that of curtesy intitiate, and as in this state such an interest can not be sold under an execution against the husband (R. S. 1889, sec. 6868), it stands to reason that it can not be subjected to a mechanic’s lien. Fisher v. Anslyn, 30 Mo. App. 316; Spinning v. Blachburn, 13 Ohio St. 131. But the plaintiff insists that the lien should be enforced against the house alone, with the right of removal by the purchaser. In the case, Kline v. Perry, 51 Mo. App. 422, which presented a similar state of facts, the Kansas City court of appeals seems to have held that view. The only difference between that case and this is that there the husband collected and appropriated the rents for the improved premises, instead of using them as a homestead as in the present case. This construction of the mechanics’ lien statute is, in our opinion, contrary to a long line of decisions in this and other states, and is opposed to the fundamental principles which underlie all such statutes. The purport of the decisions is that there can be ho lien apart from the land itself (Ranson v. Sheehan, 78 Mo. 668; Williams v. Porter, 51 Mo. 441; Wright v. Beardsley, 69 Mo. 548) and that to authorize a lien, the improvements must be such as to become a part of the realty, thereby adding to its value.' Thus trade fixtures are not subject to such a lien, for the reason that they remain chattels notwithstanding the annexation. It, therefore, follows logically that to entitle a mechanic or material man to a lien, it must appear that he did the work or furnished the materials under a contract, either directly or remotely with the “ owner or proprietor” of the land upon which the
In support of its decision the Kansas City court of appeals cites the cases of Crandall v. Cooper, 62 Mo. 478; Ambrose Mfg. Co. v. Gapen, 22 Mo. App. 397; McAdow v. Sturtevant, 41 Mo. App. 229. The case of Crandall v. Cooper arose out of a controversy between the purchaser of an equity of redemption in the land and the purchaser of a building at a foreclosure of a lien judgment. The improvements were erected at the instance of the mortgagor, and the judgment of the court, which was in favor of the purchaser of the building, was based upon the section of the statute which gives the mechanic’s claim as to the building priority over existing mortgages on 'the land, and warrants the sale and removal of the building from the mortgaged premises. R. S. 1889, sec. 6707. In the case of Ambrose Mfg. Co. v. Gapen, supra, the contract for the building was made with the mortgagor. In a contest between the material man and the mortgagee, it was held that the lien against the house was superior to that of the mortgage, and that, under the express sanction of the statute, the house could be sold under the lien judgment, and removed by the purchaser. The case of McAdow v. Sturtevant also arose on conflicting demands of a mortgagee and lienor.
These case all show that the contracts for improvements were made with someone having a proprietary interest in the land itself, and they, therefore, furnished no authority for the ruling of the Kansas City court of appeals. The only other case referred to is that of Kansas City Hotel Co. v. Sauer, 65 Mo. 288. There the con
Our conclusion is that the instruction for nonsuit was proper, and the judgment of the circuit court will, therefore, be affirmed.