53 Mo. App. 76 | Mo. Ct. App. | 1893
— Concerning the facts in this case there is no controversy. On the seventeenth day of June, 1889, one Bedford sold to the defendants, Lambertson and Dorman, a tract of land in Stoddard county, and to secure a portion of the purchase money they immediately reconveyed the land to Bedford by mortgage with power of sale. The mortgage was duly recorded. After the purchase Lambertson and Dorman erected a sawmill and building on the land. The mill and building were completed and the mill in operation for some time prior to September 12, 1890. Commencing on that day, the plaintiff sold to Lambertson and Dorman various articles which were used in repairing the mill. Within the time required by law the plaintiff filed a sufficient lien paper with the clerk of the circuit court of the county, containing a list of the articles sold and the prices, and also a description of the land on which the mill was located to the extent of one acre. In the present action the plaintiff sought to enforce his mechanics’ lien against the building and one acre of land. While the suit was pending, the land was sold under the mortgage to the defendants, J. N. Miller, F. M. Ladd and A. H. Carter, who were afterwards on their own motion made parties defendant. In their answer they denied the existence of plaintiff’s lien as against their title as purchasers of the equity of redemption.
The cause was submitted to the court without the intervention of a jury. The court at the instance of the defendants gave the following declaration of law:
Thereupon the court gave judgment against Lambertson and Dorman for the amount sued for, but refused to make it a lien on the building. The plaintiff on this appeal concedes that he is not entitled to enforce his lien against the land as against the purchasers of the equity of redemption, but he insists that he is entitled to a lien on the building.
Controversies of the kind we have here are of frequent occurrence. In the case of Haeussler v. Thomas, 4 Mo. App. 463, the mechanic did work, in repairing houses which were on the land when the deed of trust was given under which Haeussler purchased. The, court decided that, as against a prior mortgagee, a
So, in Dugan v. Scott, 37 Mo. App. 663, the lien of ' "the mechanic was for repairs on buildings which were in existence and were covered by a prior mortgage on 'the land. It -was likewise held by the Kansas City 'Court of Appeals that the lien was subordinate to that ■of the existing mortgage.
In the case of Hall v. Planing Mill Co., 16 Mo.App. 454, it appeared that a portion of the materials •embraced in the mechanics’ lien was furnished in the completion of a building situated on the mortgaged premises. In a contest between the materialman and the ■prior mortgagee, the court held that, as to the articles ■furnished for the completion of the improvement, the mechanics’ lien as to the building was the superior ■one.
In the subsequent case of Hall v. Mfg. Co., 22 Mo. App. 33, which presented a similar state of facts, the same principle was adhered to.
In McAdow v. Sturtevant, 41 Mo App. 220, the mantels which were mentioned in the lien paper were furnished under a contract, which had been entered into with the owner after the latter had incumbered the property by a deed of trust. In fact the entire improvement was made after the execution of the deed of trust. It was held that the plaintiff’s lien for the-mantels as to the building'was enforceable as against a purchaser under the deed of trust. The court proceeded on the theory that the work was necessary to the completion of the house.
It will be observed that in all the cases cited the lien of the mechanic was held to be superior to that of a prior incumbrancer, whenever it appeared that the work done or material furnished was for the completion of a
Now, in the case at bar, it is conceded that the building was completed and the mill in operation for some time before the plaintiff furnished - any of the items of his account. The articles were used in repairing the mill. At the time they were furnisLed the lien
The judgment of the circuit court will be affirmed.