Goodner v. Mosher-Roe Abstract & Guaranty Co.

282 S.W. 698 | Mo. | 1926

Lead Opinion

This is a suit against an abstracter bottomed on defendant's failure to show in an abstract of title furnished by it the previous filing of an alleged mechanic's lien.

The petition alleged that defendant was engaged at Kansas City, Missouri, in the business of examining titles to real estate as disclosed by the public records and of making and furnishing written abstracts showing the state of such titles; that on the 9th day of April, 1921, defendant made and delivered to plaintiff, for a consideration paid by her, an abstract of the title to certain real estate situated in Kansas City (in Kaw Township) to which defendant attached a certificate by which it certified that there were no mechanic's liens filed remaining unsatisfied of record in the office of Clerk of the Circuit Court of Jackson County, Missouri; that on the strength of the showing as to the title made by such abstract and certificate plaintiff bought said real estate; that said certificate was false in that there was then on file in the office of Clerk of the Circuit Court of Jackson County, at Independence, Missouri, a mechanic's lien purporting to be a charge against said real estate in the sum of $794.29; and that "by reason of the fact that defendant did furnish her a certificate that was false she was induced to buy the real estate above against which said mechanic's lien and suit was a charge, and thereafter in order to prevent foreclosure of said lien and sale of above property thereunder she was obliged to and did employ a lawyer to defend said suit in her behalf; that by means of his efforts said foreclosure was prevented and the real estate above was freed from said lien and suit, but that in and about the defense of said suit, and in the trial of the same in the Circuit Court of Jackson County, Missouri, at Independence, she was compelled to incur an indebtedness to said lawyer for fees in the sum of $300." It was further alleged that plaintiff, in order to complete the improvements on the real estate she had purchased, found it necessary to obtain a loan thereon, and because of the pendency of the lien claim she was compelled to first take a temporary loan until it was disposed of, and thereafter to re-finance the transaction, whereby she was caused to expend in the way of extra commissions and interest the sum of $750. Judgment for $1050 was prayed.

The answer was a general denial.

When the cause came on for trial defendant objected to the introduction of any evidence on the ground that the petition did not state a cause of action. The objection was sustained. The facts being such that the petition could not be amended to meet the objection, plaintiff suffered judgment to go against her. From such judgment she prosecutes this appeal.

The circuit court's ruling was based on Section 18 of an act passed in 1871, entitled, "An Act to establish the Twenty-fourth Judicial Circuit, and to provide for the election of a Judge and Circuit Attorney therefor." The section in question, which has been continuously in force since the passage of the act, is as follows:

"All mechanic's liens upon real estate situate in Kaw and Westport Townships in said Jackson County, shall be filed in the office of the clerk of the circuit court at Kansas City, and suits for the enforcement thereof shall be brought in the circuit court at Kansas City." [Laws 1871, p. 30.]

"A mechanic's lien is purely a creature of statute. It does not take tangible form as an encumbrance against real estate until set forth in a document, verified and filed, in conformity with statutory provisions. In view of the statute just quoted, a lien claim filed in the office of the clerk of the circuit court at Independence, purporting to be a charge against real estate in Kaw Township, is a nullity — a mere scrap of paper. It gives no more notice of the existence of a mechanic's lien on real estate in Kaw Township than if it had been filed in an adjoining county. Defendant, in making an abstract of the title to real estate in Kaw Township, was under no duty as an abstracter to search the records of the circuit clerk's office at Independence for evidence of mechanic's liens affecting such real estate, for the simple reason that under the statute none could be there. It follows that defendant's certificate to the effect that "there were no mechanic's liens filed remaining unsatisfied of record in the office of the Clerk of the Circuit Court of Jackson County, Missouri" was not rendered false by the existence of a purported lien paper on file in the office at Independence.

But appellant contends that said Section 18 is void because not germane to the subject of the act of which it is a part. [Sec. 32, Art. IV, Const. 1865.] She made the point at the time of the trial court's ruling and has never ceased to press it. The section has been on the statute books for more than a half a century. During all of that time it has been acted upon and regarded as in all respects a valid law. Does the time never come in the history of a statute when it can no longer be haunted by the ghosts of unconstitutionality? Is it never to have repose? Should not age render it immune at least to attack on grounds going merely to the manner of its enactment? The object of the constitutional provision referred to was to make the title of an act indicate, as a guide board, its general contents, and thereby prevent fraud from being practiced upon the Legislature itself and upon the general public. [St. Louis v. Wortman, 213 Mo. 131.] If the provisions of Section 18 were ignorantly or unintentionally enacted because tucked away in the body of a bill of which the title gave no notice, there has since been ample opportunity to eliminate them from the statute. But on the contrary both the Legislature and the people have for more than fifty years acquiesced in the statute as passed. So that if this section were vulnerable to the assault made upon it, as to which we express no opinion, we would serve no constitutional purpose in striking it down at this late date.

But if it were held that said Section 18 was void on constitutional grounds, appellant would be afforded no comfort thereby. The defendant's undertaking called for both skill and diligence. It was bound to have a sufficient knowledge of the law to know, among other things, what constituted a mechanic's lien upon the real estate the title to which it was abstracting, and was bound to use sufficient diligence to discover and note on its abstract all such liens when properly made a matter of record, so as to affect all parties interested with a notice. [Schade v. Gehner, 133 Mo. 252, 257; Dodd v. Williams, 3 Mo. App. 278, 281.] But it was not bound to consider and pass upon the constitutionality of the statutes that prescribed the place where such liens should be filed. In the instant case if at the time the abstract was being prepared the constitutionality of Section 18 was being questioned and there was grave doubt as to whether a valid mechanic's lien might not be filed in the clerk's office at Independence as well as at Kansas City, the proper degree of diligence might have required defendant to examine the files of the office at both places. But the petition contains no such averments.

The judgment of the circuit court is affirmed. All concur;Graves, J., in separate opinion.

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Concurrence Opinion

I concur in the result of this opinion only. An unconstitutional act never gets too hoary or gray-haired, that its invalidity cannot be questioned in the courts. Lapse of time does not make an unconstitutional act constitutional. Nor does the failure of the Legislature to act do more than give a legislative construction of the validity of the law, which while persuasive is not binding upon the courts. The last paragraph of the opinion suffices for my limited concurrence.