*1 95 part As a appellant. showing made light of the in tbe reversible was night question he very on that alibi, established of his he intoxicat- namely, sale law, the unlawful engaged in a violation by ap- developed other evidence appears from ing it liquor. Indeed is As “bootlegger.” much of a that that his business pellant (referring court, his brief it is said for in in this tacitly admitted these Stroup): inescapable “It is his wife appellant, they bootleggers, perhaps unprincipled as ignorant and people, three showing in view of his own satisfied . . .” We are were. harmless. the error assignments complaining VII. We have examined the throughout find trial. judge We remarks and conduct of ap appellant a reversal. The to warrant nothing sufficient therein impartial trial. His conviction based fair have had a
pears to be, us, Under record before it should on evidence. substantial All concur. is, and it affirmed. Company, Corporation, v. C. A. Brockett a Cement
Lee & Boutell Doing Business Corporation, a Garney, Company, Garney Plumbing Arthur Heating Company, Door Rust Sash & & Henry Corporation, a Seu Company, L. Seufert Charles f Doing ert, Copartners, Hardware Bros. Seufert Business Corporation, a Company, Company, Paint Cook & Varnish Henry Corporation, R. a Company, Tile United Brick & Weatherproof Corporation, Kan a Company, Lewis, Products City Light Corporation, a Company, Fixture Helen & sas Henry Doing R. Business Lewis, Johnson, J. Lewis John. Badger E. E. as C. Johnson & Son, Miller, S. Lumber & Coal Corporation, Corporation, Company, Stewart Company, Sand pondents, Rosenzweig, Rosenzweig, Grant I. Mathilde Res Company Corporation, America, Insurance Prudential (2d) App S. W. 451. ellants Two,
Division June 1937.* Opinion September Term, 1936, April 21, 1937; *NOTE: at filed motion rehearing filed; for ruled at and motion transfer en to Court Banc motions over- May Term, 1937, June *3 Grant Bosensweig, I. McCoy E. Harry Howard Charles Rosenzweigs; M. Beddon of counsel. Alfred
Wilkmson,. Byrum Raleigh Gough <& Gough and W. for Prudential Company Insurance of America. *5 Crane, Sawyer Reynolds, (cid:127)&
'Labhrop, Mersere-au and E. Claude Henry Ferguson Company. Lewis and A. Broekett R. Cement *6 Badger Arthur Johnson and Lumber & TS.. Goodwin Creason Company. Coal *7 Carney Arthur Company, Door for Rust & K. Brasher Sash
George Guy Boyer Cook Company; M. Hardware Brothers and Seufert Company. Varnish & Paint *8 Company.
Joseph Fieman for Stewart Sand F.
George Horn for E. E. Miller. in- action BOHLING, lien equitable C. This is an mechanics’ against Lot volving amounts, $2,117.04 totaling, principal Block lots), $8,524.95 against (contiguous Three and Four Lot City, Twenty-one Gardens, Jack- Romanelli an addition in Kansas claim- County, Missouri, son thereon. lien here) court, I. (respondents and Grant prevailed ants in the trial . wife, purchasers Rosenzweig Rosenzweig, and Mathilde husband and of) mortgage (and at the first foreclosure under theretofore owners America, a Four, Company on Lot and Prudential Insurance (and purchaser corporation, at the foreclosure under theretofore of) mortgage Three, appeal. owner on Lot first (herein- Company, corporation J. Nichols Investment designated convenience), after Nichols owned real estate said Qn October, 22, 1928, October said “seller” and Nichols as Fidelity Building Company, (hereinafter designated a corporation “buyer” Fidelity), reciting: in part, entered into a contract ’’ '“. . . agrees convey provided seller has sold and herein *9 said Lots .buyer Three and “for which agrees pay Four the to $9,633.30 $1,578.11 as follows: signing contract, “at the of this the receipt hereby acknowledged which is . .” . the seller. agreed Fidelity assign to interest in certain real for said estate $1,578.11. credit of $3,211.10 On delivery the deed to paid $4,844.09 in in mortgage cash and cash or second ac- paper ceptable to Nichols. The provided contract further proper if title could not be “. made . . this shall contract become null and deposit void and the made hereunder shall be returned to buyer. . . .” assignment Nichols received"the of the real estate mentioned in said $1,578.11 contract and later realized said out of said real estate. This Nichols-Fidelity provided contract for reserva- tions concerning size, the deed etc., any cost, residence erected on It, said lot. however, was not recorded.
'Fidelity’s stock was Eaton, held shares, Maud who owned R. Eaton, and N. husband, her Chester, and E. M. who owned one share each. N. R. Eaton charge was President and in active prop- other management Eatons also owned corporation. of said at times. account erty engaged building on their operations Fidelity were inter- The business transactions of the Eatons Fidelity woven; unfrequently prop- to appears title and it that not name in the erty was and at taken in the name Maud Eaton times aat may arisen practice other This have relatives of the Eatons. litigation Fidelity and for stated time when was involved pend- property purpose of in the of its title convenience transfer However, judgment. ing testi- appeal possible an from-a adverse mony litigation long settled was that had before execu- been tion of involved. the deeds here 5, 1929, improvements
On work on April construction of on the Lot said Four was commenced.
R. N. Eaton instructed Nichols the deed to said Lot Four to make April 18, 1929, Maud Eaton. a recorded Nichols deed executed 23, 1929, April containing recital: “The above described conveyed subject performed is and all claims for labor and/or thereon,” material furnished the construction of conveying gen- said Lot Four to said Maud Eaton with covenants of warranty restrictions, eral “except covenants, reservations exceptions above referred to.”
.Negotiations for a loan erection of residence on Lot Four Mortgage into between N. entered R. Eaton and Fels Real Estate Company (now Mortgage Company Arthur and here- Fels Bond and designated Fels), corporation. inafter previously had Fels trans- Fidelity, with Eatons acted business and with considered and Nichols-Fidelity- them as separate entities, treated and closed concerning Four Lot transaction but had no information Fidelity in therewith. 19, 1929, connection Under April date of Fels, transmitting warranty Nichols deed, wrote said a note for $2,422.22, trust, bond, secured by deed of in- completion papers executed, structed Fels have properly recorded returned, recording but possession $1,'833.78, before to secure principal amount, with April 20, interest from for Nichols. Said ‘,‘¥e looking letter also stated: company are your to use utmost care and your caution in the disbursement first loan pro- ceeds to actually determine that money spent payment in the bills labor and materials used in the im- construction provements erected on property.” the above described Maud Eaton Eaton, and R. N. executed mortgage a first on Lot Four and all im- provements Fels, thereon to beneficiary, City Kansas Title Company, Trust corporation, trustee, to secure their several negotiable promissory *10 aggregating $15,000, *11 with, bond, of transmittal. letter securing same, completion and a ex- papers properly to have the letter contained instructions This of, Shryock possession returned, have and for to ecuted, -and recorded from said $1,678.72, with interest authority Nichols, pay to at we have no reason “While August 9'. The letter also stated: ability responsibility his to Mr. Eaton’s financial question all to specifications, plans in and with his complete residence accordance this thereto, depending still obligations are pay all of his incident we and in dis- care and caution upon your Company to use the utmost money your loan to determine that this proceeds of first bursement used spent payment of bills for material and labor actually in the being this now built on improvements in which are the construction of warranty Niehols-Eaton property, purpose.” no other and for subject and materials for labor deed to Lot Three was made to claims same in Niehols- warranty its covenants restricted the and of as August 8 re- Eaton warrant deed Four. It dated to Lot August 9, 1929, August recorded corded Under date August 14, 1929, first R. N. Eaton executed a deed Maud Fidelity conveying National Bank said Lot Three & Trust trust to trustee, beneficiary, Company, as with said Prudential as to secure negotiable $15,000, promissory aggregating their said *12 building conceded knowledge but of had Eaton; no that he Fels the execution time at the process in construction Eaton loan this under payment first that the trust, deed of and appears $2,500. It 17, 1929, for May was Fels’ check Fels applied were loans under the moneys Eaton received R. N. such as Fidelity. credit of num- Fels for a business Rosenzweig had transacted I. Grant and himself mortgages for years, customer sometimes as ber 1930, Rosenz- attorney. February On clients and' as sometimes being notes, enT $15,000 Eaton-Fels said notes weigs purchased said and value recourse, full face paying therefor blank without dorsed in certificate, excepting including a papers, from title Fels the received Preparatory record, April dated not of mechanic liens He inspect property. Rosenzweig went purchase, Mr. said out apparently completed, new, “completed, found the in- go inside. He not months, unoccupied;” but did fox and some any outstanding lien if quired representative a Fels’ there were they all bills far as knew and believed claims and informed' so paid. had been against
Subsequent February 21st, for record to said liens were filed financially involved and a con- property. The Eatons became said difficulties Eatons parties ference of interested financial .the Rosenzweig opinion was called. Mr. testified conference he was this May, 1930, was in “Mr. Fels and that notified me to there I went.”
Thereafter, adjudged Eaton and R. N. Maud bank- 'obligations rupt, mentioned, scheduled the herein and in due course Fidelity’s discharge bankruptcy. received their for- charter was feited, Eaton, N. Eaton, Chester, and R. Maud Y. E. Knapp L. and M. trustees, as represented Fidelity litigation. said corporation in this $15,000 7, 1932, Fels deed' of trust January was foreclosed Rosenzweigs, wife, acquired and the husband and as the title to Lot Four.
The Prudential deed of trust was foreclosed and trustee’s deed, August 24, 1933, recorded Company Prudential Insurance acquired Lot title to Three.
Lee & Boutell Company, corporation, asserting against a lien Four, Lot proceeding. instituted this The owners, record and equitable, of the fee to said Lots Three Four, trustees under the several trust, including beneficiaries deeds of Nichols In- Company, vestment corporation, and, among other parties, fol- indicated), otherwise unless lowing (corporate entities lienors A.C. were made defendants: proceedings, development Garney Garney, doing business Company, Brockett Arthur Cement Company; Door Rust Sash & Plumbing Heating Company; doing Henry Seufert, copartners business L. Seufert Charles Company; Varnish Paint & Company; Cook Seufert Bros. Hardware individual; Henry Lewis, an Company; & R. United Brick Tile Light Fixture City Company; Weatherproof Kansas Products Lewis, Henry R. Johnson, John Lewis and Company; J. Helen an Miller, Son; E. E. copartners doing S. & as C. Johnson business Company; Com- individual; Badger Stewart Sand Lumber and Coal pany. Lee) (hereinafter(cid:127) designated Company’s
I. The Lee & Boutell only. cross-petition petition against a lien Four asserted Lot designated Badger Badger) Company (hereinafter Lumber and Coal against Four count separate asserted Lot one Prudential, only Lot in count two. interested appellant Three *13 Three, Badger in Lot count of not contends second the answer the is germane proper cross-petition plaintiff’s petition, to not a under jurisdiction no Lot and statutes, conferred over Three the decree the Badger general is void as said' Lot. the to states rule is as contended by 508, 613; 21 J. 239 Fisher, Prudential C. sec. Fulton v. [see 116, 128(1), 438, 441(1), Mo. 143 S. W. and other Pru- and cases] dential’s position well taken if all be this be there was the issue; peculiar provisions but contends of the the mechanics’ lien issue, case, law takes the under the the facts of instant of the out general rule. The arose in this manner: issue 17, petition, May 1930, joined, among The Lee filed others, S. City Light
Johnson & and Kansas Son & Company (here- Fixture designated inafter City, Kansas Johnson and respectively) as defend- Company (hereinafter ants. designated Sand Stewart) Stewart filed May 19, lien account 1930. On motion alleging Stewart a had against Four, lien blanket said Lots and Three Stewart was made May 29, Johnson, 1930. City defendant Kansas and Stewart held respective cross-petitions and in their asserted' and prayed for blanket against liens Three and Four. said Lots The Badger cross-petition subsequent was filed' Johnson to the cross-petitions. and Stewart A of lien number other claims asserted Lot Three. How- ever, all, exception Badger, having with the of settled, dismissed trial, settling Prudential Lot Three at the with Stewart Lot approval Rosenzweigs Three with of the the on or about 2, July 3189, (Mo. 1929 Section Revised Statutes Ann., Stat. p. 5015), improvement “when provides consiste of . . . separate contiguous buildings . . on lots . erected under general one con- 110 necessary build- separate upon a lien each to file
tract, it shall not be erection material furnished work done or lot for the ing or 3180, Re- under Section improvements.” petition The Lee such 5008). Ann., provides p. Said section (Mo. 1929 Stat. Statutes vised mechanics’ enforcement of adjudication, determination for the others) (owners parties interested rights all and the action, which action one any property purposes and for action for the aforesaid equitable an is denominated distributing proceeds marshaling, applying and purposes 3181, any Statutes 1929 property. Section Revised such the sale 5010), necessary Ann., proper p. who are (Mo.' states Stat. rights by not claimants are disclosed provides that lien whose parties; equitable institution of action at time of the record proper judgments therein, but orders by proceedings, bound are disposition final made before application entitled are any rights by person whose are disclosed party thereto, and that party may party upon application record made be made not motion. Revised or court on its own Section Statutes Ann., 5012), provides after (Mo. p. Stat. the institution of such stayed mechanics’ lien suits shall be equitable action other no brought rights ‘‘. . but separate persons suit shall be . all equitable adjusted, adjudicated and enforced such suit” shall be any property, By Section against said it. Revised Statutes Ann., 5014), (Mo. p. equitable Stat. such action is remedy “for the enforcement of made exclusive mechanics’ procedure equitable . . . in such except And action liens. governed provided, shall be as herein otherwise the law and the generally.” procedure in civil actions rules rights "We concerned with the are here mechanics’ lien claim against, rights in property, arising from, ants instant case existing by statutory only. virtue of asserted under enactment *14 McGonigle Fleming-G. (Mo.), 89 (2d) v. S. C. Co. W. 15, 18(2).] [ original lienor became vested an Under the statutes each ~with cause his lien the establishment of claim. statutory pro of action for equitable authorizing proceedings the visions enacted not aas rights thereby statutory the upon limitation vested lienors but prevention that vexation of primarily for the of an owner and others property arising from defending multiplicity in the interested of adjustment, adjudication for the stated and suits enforcement rights persons in and the property of all of the in one action. is “exclusive” equitable remedy made the action Such [Sec. 3186] for of subsequent any the establishment suits mechanics’ liens expressly prohibited property are against the [Sec. 3183]. answers) (we speaking not of are of cross-petitions lienors in such of such seeking original the establishment actions, lienor’s cause of' original an petition of all the attributes action, partake of to that cross-petition the equity in that They from usual end. differ the rights asserted cross-petition of the is not the defeat gist of a lienor’s cross-petitioner’s of petition assertion such original in the but the rights only against are rights property, and to extent the lien the that all, and, by cross-petition, if original at petitioner affected the of the incidentally upon so, placed within restrictions only if then the liens, lienor by creating Had mechanics’ liens such the statutes the instituted Johnson, City or Kansas Stewart 3180] [Secs. against lien claim equitable of a blanket action the establishment against Four, having separate liens lots Lots said Three and lienors holding against them, blanket or either as well lienors liens of as other lots, any parties to action. proper both of said would been such have involving no presents The case issue the bona fides of the blanket any inequitable resulting mechanics’ or such allocation of claims marshaling, 3180 contemplates from the had. Section settlements the applying proceeds from a of distribution of the derived the sale justice property among complete that claimants full various Fleming-G. v. McGonigle, be accorded C. Co. each. supra.] [See Where, equitable compelled‘to all proceedings, are assert lienors hold, their claims in one proceeding, proceeding, in such lienors, might against blanket recover the whole of their lien claims separate contiguous of one several Pru lots, but as contended dential, rights equitably adjust without attempt might lien respective in and to well claimants lots un result justly depriving having only against claim the lienor lot one equities lawfully entitled; to. especially thereby which is if he so discharge just other lots are relieved of their of said share blanket unjust advantage lien claim to the of the mutual debtor of holding contrary said lienors. Such spirit would be to the letter statute, marshaling, of the which contemplates applying and dis proceeds ribution of among of a sale parties. What position would- have been Prudential’s had the pinched shoe sought Prudential’s financial foot all blanket satis lienors only? faction Lot Under rights Three such circumstances the jurisdiction and the chancery lienors over the res should not rest result of a race precarious office; to the circuit clerk’s jurisdiction expand exigencies but such should with -the the sit presented and uation as disclosed to the petitions (be court they original cross-petitions) protection lienors for the rights (and' well), giving of all cross-petitions lienors others purpose original this that consideration petition. accorded [See (Mo. App.), v. (2d) 870, Waters Gallemore S. W. Nor 883(9).] fearful, Prudential, carrying are w7e foregoing ruling logical would conclusion involve insurmountable diffi *15 beyond reaching far protecting culties and arm of a court of equity complete justice administer full to and when a number
112 greater involved. The separate blanket and are and lots involved, the issue the intricacies or difficulties encountered justice. administering rounded delight equity in well greater the appel by presented underlying II. of the contentions One superior prior respective deeds trusts are that their lants is improve respective lots and claims .of the lienors to the ments. Rosenzweigs’ “points and appellants points under A number of issue, stating propositions abstract upon bear some authorities” instance, principle For in full accord. with which we are of law Mo. County Co., 228 B. & L. v. Joplin Co. Greene of law stated in cases), (2d) 250, seq. (citing 251 seq., 883, 74 W. et 885 et S. App. work in construction having their foundation effect that liens by holding purchase a contract are subordi a vendee commenced subsequent in the amount deed trust vendee’s nate to such when discharge price proceeds applied purchase to the are knowledge consent without the consti’uction was commenced such (authority) the vendor. 5006), (Mo. Ann., 3178, 1929 Stat. p. Statutes Section Revised use, en que trust, provides . . all immediate “. cestui whose joyment building, or benefit erection or shall made, by proprietor’ included ‘owner or thereof shall be words an this mechanics’ lien The holder under article law].” [the recog legal, equitable, as well as the holder of the land title possessing ownership proprietorship such therein nized subject to claims article. his interest of lienors-under said [Sawyer- 588, Clark, 596, 137, v. 172 73 139; A. L. Co. Mo. S. W. v. Short Magill (Mo. App. 151; App.), 92 L. Stephens, Mo. Co. v. Carter (2d) 581, 584 (4) ;. Hydraulic 17 S. W. Julius Seidel Co. v. Co. L. 979, (Mo. 981(4); Harris, App.), Westport S. W. L. Co. v. 103, 609, 611; App. 94, Duncan, 131 Mo. 110 S. W. Mo. Jodd v. 417, App. 420.] Lyvers (Mo. App.), (2d) 729, 733(7), In 80 S. v. Rutherford W. Lungstras owned Robert certain It was others. Henley, realtor, Raymond with M. J. placed for sale. R. Ruther- agreed Henley sale, Henley the terms of a ford told proceed repairs certain J. F. Rutherford to make the house for winter. J. F. carpenter Rutherford started the habitable work August 15, Lungstras conveyed al. about et the property Sterling September Rutherford, P. deed dated J. F. having put the title son’s convenience, his name for Rutherford Sterling $9,500 P. of trust back executed deed to secure representing money. with plaintiffs J. P. contracted purchase heating part for a began furnishing September plaintiffs materials plant, 11, and Lungstras deed and deed of trust were recorded. thereafter
113 purchase-money beneficiary in tbe deed of trust and contended the The con deed of trust took over mechanics’ lien. court priority the sidered, trust, the trustee from of the the terms deed improvements; mind beneficiary contemplated had in' the to same; undertook might they for and that pay Rutherford not the contingencies provisions against by the protect such themselves equities lienors; held lien the the trust; deed of found the purchase-money deed of both to superior trust the claim to the (Mo. App.), Waters v. Gallemore improvements and the land. In (2d) 873(7, 8), Holloway in blank 870, placed 41 a deed W. one S. authority fill in McAfee, in had the blank. one who to escrow possession Gallemore, placed in to Cecil R. who was McAfee sold Gallemore the construc up to the deed. commenced authorized take 10, 1929, which finished until improvements May tion was not consideration, 25, 26 Gallemore September paid or later. June the deed, grantee, but insert name of the secured up took the did not the conveying Holloway Belle quitclaim deeds from title to Anna the 27, Gallemore, his wife. June Gallemores executed deed of the Friesz, Bartow, V. A. R. on to trust L. trustee $1,000. quitclaim to secure The deeds and deeds of trust were re holding superior trust, corded. In the lien to the deeds claims 1‘ properly R. court court found that Cecil Gallemore said: meaning equit law. . . within . He was the owner rights land proprietor all of a in owner exercised able at contracts made all times there time and at grantee quitclaim . . . after. Belle in the Gallemore] [Anna deeds, subject any equities if she all all, received title at took to same outstanding McGray v. her husband.” See Co. Standard L. (Mo. App.), 104, 107 (7) (stating, 285 W. pur Co. S. where a
chasing “If conveyed husband had title to himself and wife: improvements prop commenced McCue was owner of the while erty, plaintiff not bound to notice of subse take [lienor] quent conveyance ; property”) L. Run & S. Co. v. Dierks (Mo. App.), (2d) 447, 54 W. nalls S. 448(1). furnishing
Materialmen and mechanics material or labor in the December, 1929, construction come pari n passu furnishing with materialmen and per material mechanics prior forming labor to consummation the Nichols-Eaton-Fels 3163, April, 1929, 1929. 3179* transaction R. S. Mo. Stat. [Secs. 4993, Ann., 5007; v. pp. Assn., Schroeter Hdw. Co. Croation S. G. 440, (2d) citing eases; 332 449, 995, 1002(15), Mo. 58 S. W. Gard (Mo. (2d) 374, North K. M. App.), ner v. C. A. S. W. 376(3), eases; citing Gallemore, v. 41 W. (2d) Waters S. 870, 873 (6).]
The rercord in the instant case discloses- Nichols record April 23, 1929, up owner and Maud as record owner up to 1928, 1932. On October January agreed Nichols “sold” Fidelity. received Nichols convey said Lots Three and Four Fidelity for acquired by value $1,578.11, from assets whether Fidelity receipt from by gift immaterial. admits its Nichols or contract pay did it. Under the kind. Fels not terms Fidelity, prior April, 1929; but lapsed for its consummation time Four and possession ytrongfully, of Lot rightfully entered into- conforming April 5, Nichols, on commenced construction April instructions, conveyed *17 of Fidelity to Eaton under date Maud 5th, begun April without Construction, Fidelity continued by 18. on Nichols, completion December, in That interruption until 1929. very contemplated Eaton in mind and the Fidelity and Maud had by Nichols-Fidelity in con- improvements question is the evidenced size, containing 22, to provisions tract of October the reference ahy cost, etc., lot; residence on said Nichols-Eaton deed of erected the subject conveying any the materials lot to and all claims labor or improve- labor and materials in construction of the furnished the warranty reserving exceptions noted; ments from the the and the advising.Fels looking Nichols-Fels Nichols ex- letter Fels to was to application ercise in of proceeds the utmost Fels’ first loan care the materials, payment-, to the for labor bills and no doubt factor in willingness accept Nichols’ to and note second deed of trust for purchase unpaid money; its obligating deed of Eaton-Fels trust promptly fully complete the Eatons to any improvements and con- moneys templated by to paid by be secured said deed of trust and pay prevent any filing and claims for mechanics’ against liens any improvements subrogating said Fels paid to lien out provided trust, fund's Eaton-Dieghan under said deed of deed (the Nichols) of trust being subject to said Eaton-Fels trust; deed Eaton-Dieghan completion reciting expressly bond that begunt the construction a residence had on Lot said and was fully by completed 1929, plans to according be November to specifications theretofore approved, pay- and -conditioned ment of all incurred' indebtedness for labor and materials used in such construction “in order there that be no mechanics’ lien claims.” There is no evidence repudiated that Nichols-Fidelity Nichols contract of October Whether justifiable or not it abe inference Fidelity possession was in of Lot Four and proceeding under said contract, consent; modified mutual from the Nichols-Eaton deed Eaton-Dieghan and the deed recognized of trust Maud Eaton her deed recognized and Nichols the Nichols-Eaton deed and its deed of trust as subordinate to lien claims incurred in connection improve- with the progress, considering in Nichols-Fidelity-Eaton ments trans- it apparent they action as ratified, as of wholq, the date of obligations Four, Lot transfer of Fidelity creating improvements for the said lot here Such involved. ratification was authority. previous any tantamount to Nor is Fels in posi- better Engaged transaction. in tion. In Nichols-Eaton consummated the making loans, notice from the recitals real estáte it had sufficient put prudent in Nichols-Fels letter to the Nichols-Eaton deed and the admittedly It made inquiry existing man on lien claims. as to trust, blue from loan, deed of secured the Eaton-Fels required that the prints, by express deed of trust terms improvements completed, authorized promptly fully and was be pay subrogated discharged claims any to lien out become was proceeds Nichols of said loan. It must have realized that money taking a subordinate purchase-price deed of trust to secure might improvements If the proceed. to its deed of trust Eaton-Dieghan completion similar Eaton-Fels bond to the com ’ pletion bond, Rosenzweigs similar, brief these bonds were states it knew the of construction and were the course completed by November 1929. If its deed of trust superior claims, why completion lien provision in its bond (as abstracted) obligors that the save it from all harmless liens, pertaining improvements, mechanics’ addition fees defending Irrespective counsel suits? lien of actual knowl edge progress, charged, the construction work then in it was *18 220, law, with Sturdevant, thereof. notice v. 41 Mo. App. [McAdow 227, 228, cases; Fleming-G. McGonigle Co. (Mo.), v. 89 (2d) 15, 19, 20;. S. W. theory for the of the rule Shroeter see Bros.
Hdwe. Co., 440, Co. v. Croation S. G. 332 459, (2d) Mo. 58 S. W.
995, 1003.]
n Wethink it clear that the Nichols-Eaton-Fels transaction was con
by
parties
understanding
summated-
on
the
the
that the Maud Eaton
record title and the Nichols and Fels deeds of trust were subordinate
to the claims of materialmen and
improvements
mechanics for the
Lyvers
here involved.
v. Rutherford,
supra; Masterson v.
[See
Roberts, 336
158, 162 (1),
(2d)
Mo.
78
856,
S. W.
858(2).]
Rosenzweig
Grant I.
acted for himself and wife in
acquisition
of the Eaton-Fels deed of
provisions
trust. The
hereinbefore dis-
of
cussed
the Nichols-Eaton deed and the Nichols-Fels deed of trust
in
chain
charged
were
his
of
is
title and he
with constructive notice
Banks,
341,
thereof.
v.
327
349,
Mo.
37
(2d)
S. W.
594,
[Black
598(6);
Rock,
Mahen v. Tavern
116 building as well of the imparted by is the commencement notice effec- notice to be Such structure.” by later contribution to attending their carry it protection must with for the of lienors tive in proceed otherwise rights lien accounts statutory to file Rosenz- 25, Statutes 3, Chapter Revised with accord Article con- process building was a weigs charged with that notice were not time had December, 1929. The said Four on Lot struction they when against property filing lien claims expired for An- 21, 1930. February of trust on Eaton-Fels deed purchased the required to were appellants swering respondents’ contention they Rosenzweigs Nichols, admit investigate for lien claims be- Maud Eaton obligated to liens under Nichols look for were seemingly They title. their chain of Nichols and Eaton cause were Eaton-Fels deed Eaton titles and the recognize that the Nichols incurred might lien claims trust been subordinate to have improvements involved. The record dis- here construction His by Eaton. inquiry Rosenzweig of or Maud no Nichols closes inquiry under hi admits he inquiry of Fels was not such constructing not obligation to Fels was make. not knew of no representative statement that he liens Rosenzweigs charged exist. did not statement attorney, prudent man, layman or put of sufficient facts
notice
580;
v.
inquiry.
Kemp,
581,
83
v.
Mo.
Beach
[Sensenderfer
127,
by
437,
299 Mo.
252
Lynn,
441(4)
(stating:
S. W.
“If
notice,
proposed purchaser
notice,
due constructive
or
actual
is
place prudent
advised of a state of
which would
facts
upon inquiry
person
purchase,
as to the title
is about to
he
such
purchaser”);
not
person
Maupin
Emmons,
is
an innocent
v.
(quoting Speck
Riggin,
Mo.
v.
We summarize Fidelity some evidence: warranted *19 acting through president, R. N. Eaton. Maud Eaton held the record title for Fidelity, the use and of benefit holder the of equitable estate. Maud Eaton approving, confirming and rati- fying Fidelity all that her husband, Eaton, or R. N. on behalf of Fidelity, doing in improvements. the construction of the Fi- delity and Maud proceeding theory Eaton were on the the record title, equitable estate, well as the subject would be to the claims respondents for liens. R. N. of Eaton had sufficient authority to subject equitable Fidelity the estate of and the record of title Mauri improvements Eaton to lien for the claims here involved. We are judgments personal not concerned with covering lien accounts. All parties to the Nichols-Eaton-Fels transaction in had mind the im- here provements involved and that the Fels deed- of trust was sub- con- any process claims in the ordinate lien for struction at time of consummation said transaction. Rosenz- the weigs No purchasers were not innocent of the Fels of trust. deed presented contention that additional construction costs were by any. Fidelity that of the incurred on account construction or improvements contemplated. The improvements were not within the dates, descriptions correct as lien accounts are amounts rights against property. on their lien property and lienors relied equitable with an We not hold that lienors who contract do basis con upon owner stand the same as lienors or nonrecord others strangers All tracting with record deal with to the owner. peril. at their The cases demonstrate
record title mechanics entering construction proper must care into materialmen exercise contracts; may lax they well be held to suffer the results of rights due and' who exercises transactions forfeit lien to one business subsequently subject their claims. acquiring property caution Rosenzweigs However, not The we do have such a case before us. subsequent voluntarily purchased of trust the lien the Fels deed attaching property, to the and could have ascertained claims inquiry, record, far proper as disclosed the facts. Our so holding equities is that the in the instant case favor lienors. foregoing applicable
The are to considered con- observations nection with the Nichols-Eaton-Prudential transaction trust, and, deed' with status of the Prudential the observations Y, dispose paragraph presented under of the issues hereinafter made appeal. Prudential’s theory A III. number proceed upon of the accounts Fidelity Others, however, equitable was the contractor and owner. instance, Fidelity. account, Gamey make no mention of The states the Eaton. owners and contractors were R. N. Eaton and Maud requirement lien The 3161 of ac- of said Section a statement both,” “. contractor, count of . ^ the name of the owner or filing person is conditioned as follows: “if known the lien.” to the Giving reasonably lien liberal construction to which statutes they accomplishment entitled' for purposes are the law claims, scope law, lien preservation within the attacks, against opinion technical mere we lienors’ accounts are compliance requirements with statutory show such substantial fairly apprise appellants as to of the demands asserted property therein described and are sufficient. Garney cross-petition, however, alleged
IY. Maud Fidelity the record title as real his held owner and that Fidelity. Rosenzweigs contract was contend variances of petition this nature between and the lien account are fatal. We *20 upon proper definitely claimant ascertaining think it for lien the 118 his facts in allege facts after the true filing
true his lien account to in the they proceeded petition; and', with parties proceeding the lien claims case, inequitable the instant think defeat it would be the between variance respondents the on account of the some seeking estab petitions statements in accounts the lien Run L. Co. v. Dierks & respective lishment of their Sons liens [See M. P. 448 (2); (Mo. (2d) 447, St. Louis App.), nals 54 W. S. upon the (2d) 131, (Mo. 133(3)] 64 App.), Co. v. Walker S. W. legally thereby. prejudiced attack of deemed not one are respondents V. Nor we do think liens of some with Maud alleged they petitions be defeated because their contracted Eaton. Fidelity Eaton, R. N. Fidelity Eaton and' or Maud joint contracts, joint, if and several would be construed as [Sec. privileged 2953, (Mo. Ann., p. 1929 with lienors 1820)], R. S. Stat. obligors against joint prosecute any their or more of claims one 1823) ; 703, R. S. (Mo. Ann., Sec. p. R. S. 1929 2956, Stat. [See. Ann., 1929 such lienors failed (Mo. p. 915], Stat. and in the event contract, would still parties they all defendants were prove to the defendants, against judgment defendant or entitled to have such 1234); Ann., any, 961, (Mo. p. 1929 if shown liable. R. S. Stat. [Sec. Ry. Co., 11, 20, 242 145 Missouri, Bagnell T. Co. v. K. & T. Mo. 465, 469, 471(2); Whitlow, App. 181 Mo. Stanley v. S. W. 840, 841(6).] 168 S. W. Fidelity contracting Eaton,
VI. Lienors with or Maud or agent parties, original contractors, of either privileged of said' were their lien accounts six of the to file within months after the accrual 4986); (Mo. Ann., p. indebtedness R. 1929 Rein- S. Stat. [Sec. Co., 493; Magill App. hardt v. Crescent B. & L. L. v. Mo. Co. (Mo. App.), (2d) 581, 584(4).]; Carter S. W. and entitled to property they their whether proceeded upon theory upon Eaton Maud was the owner of the theory Fidelity equitable owner and Maud held Fidelity. record title for use and benefit of rulings, course, peculiar These are based of the facts position party presenting instant case and' issue. Rosenzweigs original presents assignments brief of error paragraphs, by “points nineteen followed authorities” thirty. Many law, total are abstract statements unaccompanied attempt apply specified an them to facts point or to out wherein rights specified one or more of respondents the fourteen adjudicated violation of such of law. may rule This account respondents to discuss of some certain failure matters alleged matters, brief; and, other has their resulted in several comply separate motions to dismiss failure to with our rules.
119 Rosenzweigs’ appeal proper for presentation more involves details However, appellants usually than encounter. our are for rules made expedited. work of After labor observance that the the court some might through compliance which have better been avoided a with giving sufficiently preserved our rules and consideration to all issues essential, including review appellate possibly for and deemed some sufficiently preserved, issues not we overrule several motions nisi, holding dismiss affirm claims mechanics the decree prior superior liens respective and materialmen to the deeds Cooley trust both as to the and the land. and West- hues, CC., concur.
PER foregoing C., opinion adopted CURIAM: The Bohling, opinion judges as the court. All the concur. Rehearing
Motions Transfer. PER Rosenzweigs CURIAM: Prudential filed separate and the motions rehearing. requested Prudential also transfer a en court bane.
Rosenzweigs’ upon provisions motion is founded of Sections (recording statutes), 3155 (equitable notice liens and (Mo. thereof), Ann., Revised Statutes pp. Stat. 1879, 1880, 4970). Specific reference to these statutes is not made in de- cision; Rosenzweigs charged but the decision finds upon put prudent inquiry notice of sufficient person facts to (notice being meaning actual -within the supra, Section although knowing, where one is of having conscious the means of may opinion). he use on not them—cases cited Rosenz- The issue weigs obligated admitted they were to look for liens Nichols under and' Maud because Nichols and Eaton were chain of their title. inquiry record no disclosed Nichols or Maud Eaton. concluded, facts, equities all "We under case duty favored lienors. We did not rule pur- rests equitable possible chaser to ferret out all claims. rehearing motions for motion and the to transfer are over- ruled. notes principal amount, payable Fels, to reciting: said deed of “. . trust . in this case any instrument is made in improvement connection with now in course- projected of erection or promptly fully will [grantors], and com- being filed from any píete, keep for and mechanic’s pay subrogated at be to security was same,” Fels and for additional funds out of record, paid of any though lien, released option “to ’’ Nichols- in the referred to- trust by deed of this deed. The secured Samuel Eaton R. N. to by Eaton and Fels was Maud letter executed Dieghan, was Elizabeth Newkirk, trustee, benefit of for the D. note trust, and $15,000 secured subject deed to the Fels $2,422. sum principal beneficiary in the grantors said to said towas letter in completion referred to the Nichols-Fels bond Baton, “as R. N. abstracted) and Maud Eaton (as effect Dieghan, to Elizabeth acknowledged indebted themselves principals” principals have $30,000, that “whereas the in sum obligee, a begun the Four, they have erection purchased on which Lot principals obligee for said residence;” procured that whereas the others, prin- among of said agreement, $2,422 upon said loan “in residence accordance fully complete” said cipals and “to build and obligee, previously specifications submitted to plans and in the -pay materials construction all for labor and used bills claims;” residence, mechanics’ liens order that there no said in upon performance said con- that the same to be void and saving “by 1, 1929,” November and the principals said ditions expense. Eatons also obligee from of said all loss and executed Rosenzweigs’ brief Fels. $15,000 completion in favor of a bond similar; we note the same but completion bonds are states these language instruments. The Fels used their abstract of the not . effect, abstracted, obligors “. .- have bond was to Four; complete . agreed to and . a residence on Lot erect obligation being and said that said to be void obligors mechanics’ liens” and said completed ‘'free clear of sav- liens, ing pertaining all mechanics’ any Fels “harmless from improvements, paying any suits”, “counsel defend lien “any paying judgments all and costs in such suit.” 1929, papers, forwarded the Nichols’ on June forwarded Fels $1,833.78 to Nichols to cover the mentioned in the Nichols- remittance April 20, 1929, Fels letter. These instruments bore date of deed, April 23, and the deeds of trust recorded 1929. general Transactions with Lot reference to Three followed Lot procedure with reference to- Four. June, work Lot The construction on Three commenced negotiated R. N. Eaton loan from Prudential Insurance designated Company America, (hereinafter corporation Pruden- represented Shryock tial), Realty which was transaction Shryock). designated (hereinafter R. Company N. instructed Lot to Maud Eaton. Nichols make deed to Three Under date Shryock August 9, Nichols forwarded’ to warranty deed Three, $2,422.09 blank note and second deed Lot of trust
Notes
several notes containing warranty;’ deed of trust usual covenants trust, subject trust, conveying deed of to said Prudential deed of Newkirk, trustee, D. Deighan said lot Samuel to with Elizabeth as beneficiary, negotiable promissory $2,422.09. secure their to for note They, Eatons, August 9, 1929, completion also executed on bond Dieghan covering to Elizabeth Lot Three in the same and con- sum taining given the same completion recitals in bond connection August 14, 1929, with Lot Shryock Four. On issued’ check for $1,680.12 Nichols $1,678.72 to cover the mentioned the Nichols- August 9, Shrvock letter of $4,000 its cheek payable also for Eaton, R. N. which Eaton deposit endorsed for credit Fidelity. “ ’ Dieghan Elizabeth Nichols, a steiw’ no had real interest transactions, in the and Nichols real was the owner second deeds of trust. on Lots and Four Three were finished in Decem- ber, 1929. Nichols carried these transactions on its books the name of the Fidelity Fidelity carried the on its books as an asset in the name Maud Eaton. R. N. Eaton testified Maud Eaton had no interest property; general charge that he had Fidelity; business that he made contracts for materials for the buildings; that buildings the construction of general was the business of Fidelity and that claims of the lienors were correct as amounts; that one Brown was employ Fidelity. H. Fred Í08 worked that he Fidelity; and employed he was testified Brown im- materials purchased instructions Mr. under Eaton’s Fels, Fidelity. Arthur name of in the here involved provements Fels was that recollection testified his corporation, president Fels submitted blueprints plans loan from agreed make the