278 Mo. 236 | Mo. | 1919
This is an appeal from an action brought in the Circuit Court of Jackson County, at Kansas City, under the statute in relation to Liens of Mechanics & Materialmen, Article 3, Chapter 74, Revised Statutes 1909, as amended, Laws 1911, p. 314, providing for the institution of suits for the adjudication of the rights, interests and liens of mechánics, and of other claimants therein specified. Margaret Langdon, plaintiff in the action below, was the owner of the property involved herein, located in Kansas City. The contracts made by the lien claimants were entered into by them with her, through Thomas Kelly, her brother, as her ágent. The work was commenced in the erection of a building on the property in July or August, 1912. On January 2, 1913, Margaret Langdon executed a deed of trust, recorded January 4, 1913, to one Thompson, as trustee, to secure a note for $12,500, made to the Pratt-Thompson Investment Company. On April 21, 1913, the Investment Company sold the note to Sarah E. Kleeman, the respondent. There was no record of this transfer. Prior to the 'purchase of the note, Sarah Kleeman’s husband, acting as hen* agent in the matter of the purchase, went out and examined the property, and saw the building was then in process of erection.
Thereafter, various claimants filed mechanics’ liens against the property as contractors for some portion of the improvement, and brought separate suits to enforce their respective liens, making the owner of the property, Thompson the trustee and the Investment Company de
The facts summarized, therefore, are that the lien claimants, in suits' to enforce their liens, made the owner of the property and the trustee, and the beneficiary in the deed of trust to whom the note was made payable, parties defendants, but did not thus make the assignee of the note, because of a lack of knowledge or any means of knowing of the assignment to her of the note and deed of trust securing same. The question seeking review, therefore, is. whether the liens of the lien claimants are entitled to priority over that of the assignee of the note and holder of the deed of trust.
The furnishing of the materials and the commencement of the work in this case antedated the deed of trust. As between the mechanics’ liens and that of the original payee in the note, in whose behalf the deed of trust was made, the former were entitled to priority over the latter.
Respondent, as assignee of the note, contends that ‘ this does not affect her rights, because the statute (Sec.
Waiver is essentially a matter of intention. It need not he proved by express declarations, hut may he shown by the acts and conduct of the parties, or even under some circumstances, by .their non-action. Whatever parties do or forbear to do, therefore, their acts or omissions, to he construed as waivers, must he so manifestly consistent with and indicative of an intention to relinquish the particular right or benefit, that no other reasonable explanation of their conduct is possible. [Mich. Sav. & L. Assn. v. Trust Co., 73 Mo. App. l. c. 165; Stiepel v. Life Assn., 55 Mo. App. 224; Hurley v. Farnsworth, 107 Mo. l. c. 309; Berman v. Fra. Health & Accdt. Assn., 107 Mo. 373; Parsons v. Lane, 97 Minn. l. c. 104; Kiernan v. Ins. Co., 150 N. Y. l. c. 194.]
Although it is evident from the general principles above announced that a waiver may he created by implication, the question as to whether or not it exists in a particular case, being one of intention, must he determined by the facti^ and circumstances of that case (Mims v. Macon Railroad Co., 3 Ga. 333; Pope v. Graham, 44 Tex. 196; Stribling v. Coal Co., 31 W. Va. 82; Avery v. Hackley, 20 Wall. [U. S.] 407); and in no case will a waiver he presumed in the absence of evidence clearly tending to show it (Muench v. Valley Nat. Bank, 11 Mo. App. 144).
The affirmative facts in the instant case disclose no intention indicative of a waiver. The lien claimants, in their suits to enforce their liens, made defendants of all parties who within their knowledge or in the exercise of reasonable diligence they were enabled to determine
The law in conferring a right or prescribing a duty, does not require the impossible. However strict a statute may be, it should not be so construed as to deny the rights it confers to those who, within the range of reasonable possibility, have complied with, all of its requirements.
In the absence, therefore, of any knowledge or a means of obtaining same, of the existence of the assignment, the lienors cannot be said to have manifested, any intention in not making the assignee a party defendant. Without such an intention, which, under any circumstances must be held to be a sentient act, there is no ground upon which to base the presumption of a waiver, The lienors, therefore, in the enforcement of their liens, not only as to the parties made defendants, but in the timeliness of their actions, sufficiently complied with the statutes (Secs. 8221, 8228) in instituting their suits within ninety days after the liens had been filed, and by making
This is. the evident meaning and purpose of the amendatory statute (Laws 1911, p. 314) in regard to the adjudication and determination of liens of this character, which provides that “all persons . . .having any rights in . said property to be affected . as may be disclosed by the proper public records, shall be made parties. Any person, lien claimant or other, having any rights in, to, against or upon said property and any of it whose rights are not disclosed at the time of bringing of said action by the proper records, shall be bound by the proceedings, orders and judgments in said action.” [See. 8235b, Laws 1911, p. 315.]
Except in the well considered case of Redlon v. Badger Lbr. Co., 194 Mo. App. 650, 189 S. W. 589, the question here involved has not, under a like state of facts, been determined here or elsewhere. In the Redlon case, Trimble, J., speaking for the court, said in effect, that in a suit to enforce a mechanic’s lien, where the owner of the property and all of the parties to a deed of trust on same, including the record owner of the note and the trustee were made defendants, a judgment in favor of the lienor was held not to be void as to an assignee of a note, secured by a deed of trust on the property, who had not been made a party defendant because his existence was unknown •at the time of the institution and prosecution of the suit. A claim of the lienor, under the mechanics’ lien law, having attached before that of the deed of trust, it was held under the amendment to that law (Laws 1911, p. 315) that it was only required of the lienor to make defendants of those who were parties to the record or whose existence was known or could have been ascertained.
The contention of the assignee of the note in that case was based on the failure of the lienor to make him
While the conclusion in the Eedlon case is in terms based on the construction of a statute (Sec. 8235b, supra), it must in reason find its fundamental support, as is evident from the quotation therefrom, in the original and persistent priority of the mechanics’ liens over that of the deed of trust, which having attached, is not interfered with where the lienors have without dereliction conformed to all of the requirements of the statute in
The error in the ruling of the trial court, as to the priority of the lien of the deed of trust, necessitates a reversal and a remanding of this cause on behalf of the appealing lien claimants with whose claims we are alone concerned; and it is ordered that a judgment he entered up in conformity with our conclusions herein.