Hauser v. Hoffman, 32 Mo. 334

Hauser v. Hoffman

32 Mo. 334 | Mo. | 1862

Bates, Judge,

delivered the opinion of the court.

This is an action for possession of a lot of ground in St. Louis, brought originally against both Weber and Hoffman, but dismissed as to Weber before trial.

At the trial, judgment was rendered in favor of the defendant, Hoffman.

Both parties claim title under Weber, who, on the first of January, 1856, had good title'to the lot.

The plaintiff claims under a deed of trust made by Weber on the 9th of July, 1856, to secure the payment of a debt and a sale under the deed of trust, at which sale the plaintiff became purchaser. The defendant claims under a judgment and execution sale at which he was purchaser.

*339The questions which are to be considered in the case arise upon objections by the plaintiff to the defendant’s title. The judgment under which the defendant claims was upon and for the enforcement of a mechanic’s lien. The lien was filed November 18,1856, and showed an account for work done and materials finished, beginning on the 18th of February, 1856, and continuing down to the 15th October, 1856. Suit was brought to enforce the lien, on the 14th day of July, 1857, against Weber, who made no defence, and final judgment was, on the 10th day of February, 1858,rendered against the defendant, Weber, for one thousand five hundred and fifty-four dollars and seventy-seven cents; and if no sufficient property of said defendant could be found to satisfy said damages and costs, then the residue thereof to be levied out of the said- property charged with the lien.” Execution was issued, a sale and deed made to the defendant, and a sheriff’s return made upon the execution in these words: “ Satisfied. March 27, 1858; — James Castello, Sheriff.”

When the account filed as a lien begun — that is, February 18, 1856 — the special lien law, applicable to St. Louis county, approved February 24, 1843, was in force, and continued so until May 1, 1856, when it was repealed by the 25th section of the general lien law, which went into force on that day by virtue of the 18th section of the act concerning laws. (2d Rev. Laws, 1026.) The act of February 14, 1857 (which took effect on that day), specially applicable to St. Louis county, repealed all acts and parts of acts contrary to or inconsistent with its provisions. (Laws of 1856-7, p. 668.) The act of 1843 and the act of 1857 each required that the suit should be brought in ninety days after the filing of the lien. The act of 1855, which took effect May 1, 1856, gave nine months within which to commence suit in the case of original contractors, as was this case.

In this case the suit was brought within nine months after the lien was filed, but more than ninety days after the lien was filed, and more than that time after the act of 1857 was passed.

*3401. Neither the plaintiff nor the trustees, or the cestui que trust in the deed of trust under which he claims, was a party to the suit on the lien under which the defendant claims, and he may therefore now object to the regularity of that proceeding.

2. The important question in the case is, whether the suit to enforce the lien should have been brought within ninety days after the lien was filed, or whether nine months were allowed after the filing of the lien within which to bring the suit.

The right of action of the plaintiff in the lien suit accrued immediately upon the filing of his lien, and no subsequent legislation could deprive him of that right; but the legislature might alter the mode of enforcing that right, and, as a part of that power, might limit the time within which a remedy would be given him to enforce his right. The law never denies a right, but in all acts of limitation does, under certain conditions and in certain circumstances, deny the remedy. In this case, after the plaintiff’s right of action to enforce his lien accrued, the legislature enacted that all such suits should be brought within ninety days after the filing of the lien. This enactment could have no retrospective action, and, consequently, where liens had already been filed, the persons filing them would still have ninety days within which to bring their suits ; and if the plaintiff in the case now being considered had brought his suit in ninety days from the passage of the law, his suit would have been in time; but as he did not do so, he has lost all advantage of his lien ; and not having proceeded according to the law, the proceedings are, as to the plaintiff in this suit, a nullity.

The court below having taken an opposite view of the question, and instructed the jury in accordance with that view, its judgment is reversed'and the cause remanded for a new trial.

Judges Bay and Dryden concur.