45 Mo. App. 365 | Mo. Ct. App. | 1891
— This was a suit to enforce a mechanics’ lien. The defendants had judgment and the plaintiffs appealed. The principal question presented by the record for our consideration is whether the court erred in sustaining the defendants’ objection to the introduction of the paper purporting to be a lien on the ground that it contained no sufficient description of the property sought to be charged. The description waa “a frame barn and one acre on which the same is situated, being erected on a tract of sixty-four acres, being all of the east half of the southwest quarter, section 12, township 52, range 18, in Howard county, and lying east of the branch running north and south.” The statute, section 3176, Revised Statutes, 1879, provides there must be a true description of the property, or so
In reference to the case now under review there is no contest betweén independent outside parties. Had a third person purchased the property without any other notice on the record it would probably not have been notice to him. Where the rights of third persons who are subsequent purchasers are concerned, a stricter construction is maintained than when the controversy is between one who has furnished materials or labor to* another whose property has been thereby enhanced. Ranson v. Sheehan, 78 Mo. 668; De Witt v. Smith, 63 Mo. 263. These statutory provisions are highly remedial, and should be so construed as to effectuate the benign intention of the law-maker. McAdow v. Sturtevant, 41 Mo. App. 220. In this case the contest is wholly between the materialman and the land-owner whose property was improved and benefited by the materials which were furnished and used in the structure situate on the land of the latter. In such case ‘ ‘ the true doctrine seems to be, that if the description is specific and definite enough, so as to enable one familiar with the locality
In Oster v. Rabeneau, 46 Mo. 595, the acre connected with the building was measured off by the county surveyor and proof made of it before the court, and the court adopted the survey and rendered judgment in which the surveyor’s description was employed in describing the subject of the lien so established.
In the opinion expressed by Mr. Commissioner Philips in Ranson v. Sheehan, 78 Mo. 668, it was remarked that “it was suggested that the survey should be made by an officer of the court under an order for that purpose. We can perceive no reason why the survey of the county surveyor, acting under his official oath and bond, cannot be received in evidence to establish the boundaries of the acre of land which is the subject of the lien,
Under the provisions of section 3174, Revised Statutes, 1879, a lienor in a case, where there is no controversy with outside or third parties, may subject the “building, erection or improvement to .sale under execution and the purchaser may remove the same within a reasonable time thereafter.” Kansas City Hotel Co. v. Sauer, 65 Mo. 279; Smith v. Phelps, 63 Mo. 585 ; Crandaer v. Cooper, 62 Mo. 578 ; Rutley v. Hudson, 62 Mo. 383; Hall v. Mfg Co., 22 Mo. App. 33; Holland McCarty, 24 Mo. App. 82 ; McAdow v. Sturtevant, 41 Mo. App. 220. If the plaintiff failed to follow up the introduction of his lien paper with proper evidence of a survey of the land which it was intended to charge with
The defendants contend that the petition does not state facts sufficient to constitute a cause of action in that it is not alleged the materials furnished “ were actually used in the construction of the building.” This contention we do not think can be sustained in a case like this, where the materials were alleged to have been furnished to the owner of the property, for any building, erection or improvement thereon. If, however, furnished to a contractor or a subcontractor, then this averment would seem necessary. This will appear quite manifestly so by an examination of section 3194, Revised Statutes, 1879, in connection with the cases referred to by defendants.
For the error already stated the judgment must be reversed and the cause remanded.