delivered the opinion of the court.
Action of ejectment for a house and lot on Howard, near Tenth street, in the city of St. Louis. Walter P. Billings owned the premises in March, 1869, and in, the following May he employed one Greenwood to put up an ordinary cooking range in the dwelling in question, then a houses owe four or five years old. This work Greenwood did, putting
In October of the same year, Greenwood filed his lien, and brought suit for its enforcement in the November of the same year, making Billings, the trustees and the cestui que trust, parties defendant. His petition contained the usual allegations, and among them it was alleged that the cooking range “was sold and delivered to, and set up for, said Billings, in and to be used in, and as a fixture of. and was so used by said Billings in, a certain brick house,” etc.
The answers of the defendants put in issue the chief allegations of the petition. Subsequently, however, by stipulation filed, the parties agreed to let judgment go against Billings for the amount sued for, as well as a special judgment against the premises; but execution to be stayed for four months.
Judgment, as stipulated, was accordingly entered, containing all necessary recitals, referring to the stipulation, and describing the various interests of the defendants in the property, and providing that if no sufficient property of Billings could be found, to satisfy the judgment, that the residue be levied out of the premises charged with the lien. After the expiration of the period agreed on, execution issued against Billings in conformity to the judgment, was returned unsatisfied, and under an alias execution the property in suit was sold, and the defendant, Mrs. Dickey, became the purchaser, receiving and having recorded the sheriff’s deed therefor.
The sale took place in June, 1872. In the next October thereafter, Bernard J. Reilly, one of the trustees, conveyed the property to one Wheeler, who in time conveyed it to plaintiff. Mrs. Dickey, after her purchase and the convey
The lien given by the statute attaches as soon as the work is begun (Houck Liens, § 157), and when made perfect in the mode pointed out by law, has preference to any prior lieu on the land on which the improvements are put, and is to be preferred to all incumbrances attaching to the buildings subsequent to the commencement of such improvements. (Wagn. Stat., 908, 909, §§ 3, 7.)
As above seen, the lien in favor of Greenwood attached before that created by the deed of trust, and as a matter of course must have conceded to it its statutory priority. The pin-chaser at the execution sale consequently bought the property as free from the incumbrance created by the deed of trust, as if such incumbrance were without existence. In other words, Billings being the absolute owner at the time the work was begun and the materials furnished, which gave origin to the lien, his staius towards the property remained, to all intents and purposes, unchanged, down to the time when that lien found consummation at the sheriffs sale.
But it is urged that the judgment, which resulted from the stipulation ñled, went only against Billings, and that, therefore, his interest alone was sold under the execution conforming thereto. If, however, the foregoing views be correct, this position is clearly untenable. - Such construction would defeat not only the plain letter, but the obvious object of the statute referred to. The judgment rendered in conformity to stipulation embraced all the parties who were interested, describing their interests, and as effectually concluded them as it did Billings. And that judgment, aside from-staying execution four months, is in precise accordance wi.th legislative provision (Wagn. Stat., 910, 911, §§ 13, 14, 15), being rendered against the debtor.
It would be a meaningless ceremony, and the statute nowhere requires-that judgment be rendered, or execution issue against any one eise. All others’ rights and interests are by
Some attempt appears to have been made at the trial to attack the judgment referred to, on the ground that the cooking range was not a fixture. It was clearly incompetent to do this. After rendition of judgment by a court of competent jurisdiction all issues of fact raised by the pleadings are forever settled. So that it was entirely immaterial whether the cooking range was attached to the freehold or not. The court on issue joined, so found, and that was sufficient. Nor was it at all material that the house was four or five years old at the time the work, which resulted in the lien, was done. The statute extends its protection as well to cases of this sort as to those where the materials furnished and labor performed are devoted to the erection of a.building entirely new.
There being no error in the record, we shall affirm the action of the circuit, court in giving certain declarations of law, which caused the plaintiff to. take- a n.on-suit, as, these declarations' conform to the views hereinbefore expressed. Judge Tories absent; the other judges concur.
End of January Term, 1876, at St. Louis.