158 S.W.2d 124 | Mo. | 1941
Lead Opinion
These two cases involve title to real estate. They were consolidated in this court because the outcome of each rests upon similar state of facts and questions of law. Case number 36650 pertains to lot 4, block 21, Romanelli Gardens, Kansas City, Missouri. Case number 36651 pertains to lot 16, block 15, of the same subdivision. [125] On July 29, 1938, plaintiffs, appellants here, filed a separate suit as to each lot in which they asked the court to try and determine title. The specific relief sought in each case was the cancellation of a sheriff's sale and deed executed pursuant thereto. The sales were had on July 21, 1938, during the same term of court as when the present suits were filed. The sales were had pursuant to executions issued upon judgments and decrees establishing mechanics' liens against the lots in question for improvements made thereon. The decree in case number 36650 was entered in the Circuit Court of Jackson County on January 15, 1934. In case number 36651 the decree was entered on April 13, 1934. The principal question in each suit was whether the mechanics' liens were superior to the deed of trust held by appellants, Rosenzweigs. The decrees of the circuit court established the mechanics' liens as being superior to the deed of trust. This court, on April 21, 1937, in the case of Lee Boutell Co. v. C.A. Brockett Cement Co.,
[1, 2, 3] Appellants in their brief made the following suggestion to this court:
"The [126] full story of Sheriff's deed, mechanic's liens and title being now before the Supreme Court, this Court is now in position, if it so see fit, by its own judgment, or by its mandate with instructions, including award of future possession and rents in accordance with present determination of the true title, to bring to a present end, in accordance with law and actual facts, the eleven-years' exhausting contentions of the parties thereover . . ."
We will follow the suggestion and decide the case on the merits. Appellants insist that the liens created by the decree of the circuit court against the lots in question in the mechanics' lien proceedings expired after a period of three years, and cite in support of that contention Sections 1269, 1270, R.S. Mo. 1939. These sections do not apply to judgments and decrees which specifically create liens against real estate described in the judgments, but to judgments in personam. There was no personal judgment entered against the Rosenzweigs in the mechanics' lien proceedings and therefore no lien existed against any of their real estate except as provided for in the decree itself. The liens were established by the decrees against lots four and sixteen above described. These liens were therefore valid and alive during the life of the judgments, that is ten years. Neither was it necessary for the sheriff to file a notice of the levy upon the lots prior to the sale as provided for in Section 1343, R.S. Mo. 1939. Such is the rule as declared by this court in Schwab v. City of St. Louis,
"It is evident that the purpose of section 1555 was to make judgments in personam a lien on the real estate of the judgment debtor, and section 1556 fixes the duration of such lien at three years from the entry of such judgments. The general statutes are silent, so far as we can find, with respect to the duration of the lien of judgments for special benefits. Judgments in proceedings for the collection of local assessments and special benefits are judgments in rem, not in personam, and can only be for the enforcing of the lien against the particular property assessed."
In St. Louis Brewing Assn. v. Howard,
"It may also be conceded that the sheriff of Washington county did not file a notice of the levy in the office of the recorder of deeds, under section 4922; but that does not affect this case, for that section only requires such a notice to be so filed where the judgment is not already a lien on the property, and in this case the judgment had been a lien on this property for more than a year before the execution was levied on it." *1151
[4] We therefore rule that the liens created by the decrees in the mechanics' lien proceedings remained in full force, without a revival proceeding, for a period of ten years, unless fully discharged. As to the question of a proper return by the sheriff on the executions, we note that the sheriff followed the directions in the executions issued to him. The return disclosed that he made a diligent search and failed to find any property of the Eatons, Knapp or Chester out of which to satisfy the judgments. The returns further showed that he then made a levy upon the lots here in question. The sales were had during the May term after notices had been published for the required time. The sales were then approved and the deeds executed four days later. The executions as issued and returns thereon complied with the provisions of Section 1319, R.S. Mo. 1939. [See Marks v. Hardy,
Respondents filed a motion to dismiss the appeal in each case, alleging that appellants had failed to comply with rule fifteen of this court. Since we have decided the questions on the merits against appellants the motions to dismiss are hereby overruled without considering their merits. The judgment of the trial court in dismissing plaintiffs' petition in each case is therefore affirmed. Bohling and Barrett, CC., concur.
Addendum
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.
Addendum
"We say the decree undertakes to give a money judgment because the judgment is not expressed in the clear and apt language customarily used in rendering judgment upon debt. And some question *1152 might arise as to whether the judgment in this regard was even sufficient upon which to base an execution."
The judgment of the trial court canceled a mortgage and the parties claimed that the lien created by the mortgage was merged in the judgment. This court decided that since the mortgage was canceled the only lien existing was the judgment lien. We do not think that those cases control the question now before us. The statute governing mechanics' liens gives to mechanics and others a lien upon the property improved by virtue of the contract with the owner of the land upon which the improvements were made. [Sec. 3546, R.S. Mo. 1939.] Those liens may be perfected and perpetuated by taking the necessary legal steps prescribed by the subsequent sections of the statute, particularly Sections 3551 and 3562, R.S. Mo. 1939. It is clear that the general statute, Sec. 1270, R.S. Mo. 1939, does not apply, because mechanics' liens are governed by a special law applicable to those liens. A decree of a court of equity entered pursuant to Section 3570, R.S. Mo. 1939, merely establishes liens created by the statute in favor of those whose labor and material have added an improvement to the lot or land charged with the liens. Certainly the life of those liens does not depend upon Section 1270, supra. Nor does that section in any way limit the provisions of the mechanics' lien law.
In speaking of a special lien against land, by a decree in equity in a suit involving a vendor's lien the Kansas City Court of Appeals in Hockaday v. Lawther,
"To that decree no lien attached such as belongs to judgments generally by virtue of the statute, but only such lien as the decree itself fixed, established, and ordered to be enforced. . . . At any time within ten years subsequent to its rendition, an execution could have been issued upon the decree. . . . After the expiration of ten years from its rendition no execution could have been so issued."
Gill on Missouri Titles (3 Ed.), sec. 1421, page 636, treating this subject, tersely states:
"Special judgments do not expire in three years,
"But do expire in ten years,
An examination of those cases revealed that they support the statements made. For example, in Boyd v. Ellis,
"Besides this, the tax judgment is special, and constitutes a lien on no other property than that upon which the taxes were assessed. We do not see how it can be said the tax lien is merged into a judgment lien so as to expire in three years, as does a general judgment lien. The lien for unpaid taxes is more like a mortgage lien. This court *1153
held long ago that the lien of a mortgage was not merged in a judgment obtained in a proceeding under the statute to foreclose the mortgage. [Riley's Admr. v. McCord's Admr.,
In like manner it may be said that in the case before us the mechanics' lien judgment did not constitute a lien on any other property [128] except the Rosenzweig lots involved in this suit. The very object of the mechanics' lien decree, entered by the trial court, was to enforce the lien created by the mechanics' lien statute, and the decree did not create a new lien. The statement in the principal opinion to the effect that the decree created a lien is inaccurate. A decree in a mechanics' lien suit perfects and perpetuates the lien created by statute. The decree itself does not bring the lien into existence. [40 C.J. 264, sec. 327.]
After a reconsideration of the question we are constrained to adhere to the conclusions reached in the original opinion. The motion for rehearing and the motion to transfer the cause to the court en banc are hereby overruled.