McLaren v. International Real Estate & Improvement Co.

126 Mo. App. 254 | Mo. Ct. App. | 1907

BLAND, P. J.

(after stating the facts). — Under the provisions of section 4205, Revised Statutes 1899, a mechanic’s lien attaches “to the buildings, erections or improvements for which they (the materials were furnished or the work was done, in preference to any prior lien or encumbrance or mortgage upon the land upon which said buildings, erection, improvements or machinery have been erected or put,” etc. The section further provides that “any person enforcing such lien may have such building,” etc., “sold under execution, and the purchaser may remove the same within a reasonable time thereafter.”

In Seidel v. Cornwell, 166 Mo. 51, 65 S. W. 971, and Schulenburg v. Hayden, 146 Mo. 583, 48 S. W. 472, it was held that the purchaser of the building or improvement at a sheriff’s sale under a judgment rendered under and in. pursuance of the provisions of the above section, may maintain replevin for the improvement if the defendant refused to permit him to remove it. In Schulenburg v. Hayden, supra, the Supreme Court, through Marshall, J., after reviewing the cases wherein the Supreme Court had construed the mechanic’s lien law of the State, at p. 594, said:

“The true construction to put on section 6707, Revised Statutes 1889 (now section 4205, R. S. 1899), is that if there is a mortgage on the land and a contractor, under contract with the owner of the equity of redemption, builds, a new house upon the land, he has a mechanic’s lien against the house, and the house may be sold, and may be removed from the land by the purchaser, for this preserves to the mortgagee all the security he formerly had, and secures, as far as possible, the, payment to the contractor for the work and materials he employed in building the house.

This is all that section 6707 means or guarantees. This is made perfectly clear in the light of section 6706, which- confines the mechanic’s lien to the right, title and interest of the owner, and it is in harmony with the adjudications, and with the first principles of law and justice.”

Section 4211, Revised Statutes 1899, provides: “In all suits under this article the parties to the contract shall, and all other persons interested in the matter in controversy or in the property charged with the lien may be made parties, but such as are not made parties shall not be bound by any such proceedings.”

Real Estate Investment Company v. Haseltine, 53 Mo. App. 308, was a suit in trespass for moving a house off lot 6, Boulevard Addition to the city of Springfield, by the defendant, who offered to justify by showing he had purchased the house under a judgment foreclosing a mechanic’s lien thereon. His offer was rejected by the circuit court. On appeal this ruling was held error by Judges Rombauer and Bond in separate opinions. The case was certified to the Supreme Court but for some reason not known to us never reached that court, or if it did was never determined by said court. The underlying facts of the case are that, on June 8,1889, the then owner of the lot executed a deed of trust thereon which was foreclosed May 6, 1890, the plaintiff being the purchaser at the foreclosure sale. On June 13, 1889, the owner of the lot began the erection of a house on the lot. Luther Juckett established a mechanic’s lien on the building August 17, 1889. In his suit to foreclose his lien, neither the trustee or beneficiary in the deed of trust of June eighth were made parties defendant. Defendant was the purchaser of the house on execution issued on the lien judgment. In an examination of the validity of the objections to defendant’s evidence (the lien judgment and his purchase of the house thereunder) Judges Rombauer and Bond went into an examination of our mechanic’s lien law and the conflicting decisions thereunder, and reached the conclusion that the term “bound,” in section 4211, supra, is used in a narrow sense, “namely, as meaning concluded,” and held the evidence should have been admitted as a fact justifying defendant in the removal of the house, it being competent, however, for plaintiff to go behind the judgment to show irregularity in the proceedings. The early Missouri cases cited seem to give credence to this view; later ones oppose it, especially the case of Crandall v. Cooper, 62 Mo. 478, a suit in ejectment wherein it was said that as the mortgagee of the premises was not made a party to the proceedings to foreclose the mechanic’s lien “he was a stranger to them, and they have no force or effect upon him.” This holding was approved by Judge Sherwood in Coe v. Ritter, 86 Mo. 277, and was again approved by the same learned judge in the later case of Russell v. Grant, 122 Mo. l. c. 173-4, 26 S. W. 958. This holding is supported by the cases of Hassal v. Wilcox, 130 U. S. 493, and Windsor v. McVeigh, 93 U. S. 274, cited with approval in Russell v. Grant, supra. While it is true that a judgment is admissible in evidence against the world to establish such judgment (Cravens v. Jameson, 59 Mo. 68; Jamison v. Bagot, 106 Mo. 240, 16 S. W. 697) yet it is axiomatic that a stranger to a judgment is not bound or concluded by it, nor are its recitals evidence against him; and this is so, independent of any .statute on the subject. [Russell v. Grant, supra; Adams v. Cowles, 95 Mo. 501, 8 S. W. 711; Hedrix v. Hedrix, 103 Mo. App, 40, 77 S. W. 495.] Black says: “It is a universal rule that all who are neither parties to a judgment nor privies to such parties are wholly free from the estoppel of the judgment. . . . ‘No person can be divested of title to his property in a suit between other parties of which he has no legal notice, and a judgment rendered in such a suit is not binding upon him, and is not admissible against him in any future proceeding in which the title to the property is in controversy.’ The same rule holds good in chancery as well as at law. Strangers to a decree are not bound by it.” [2 Black on Judgments, sec. 600.] See also cases cited in foot note. The ruling in Real Estate Investment Co. v. Haseltine, supra, is opposed to this well settled rule and is in effect, overruled by the case of Russell v. Grant.

We think the ruling of the learned circuit judge is correct, and affirm the judgment.

All concur.