34 Mo. 68 | Mo. | 1863
delivered the opinion of the court.
This is an action of ejectment. The plaintiff claims title
Between the times when the work was done and materials furnished for which the liens accrued, and the time when the liens were filed, Ferguson, one of the defendants, and landlord of the others, bought the property of the former owner. Ferguson was not made a party to the proceedings for enforcing the liens.
The Land Court, in which the case was tried, declared the law to be, that, <£ where the owner of a building on which there is a mechanic’s lien for materials furnished under a contract with himself, conveys the premises to a purchaser whose deed is duly recorded in the proper county before the filing of the lien, and before the initiation of any suit to enforce the lien, no judgment can be rendered against the property in a suit to enforce the lien unless the purchaser be made a party to the record.”
Had Ferguson been made a party to the suit to enforce the lien, there is no doubt but the plaintiff would have had title as against him, (Dubois v. Wilson, 21 Mo. 213,) and this is not, in fact, disputed. The case of Clark v. Brown, 25 Mo. 559, is particularly relied on to sustain the decision of the Land Court. That case differs essentially from' this. In that case, the proceeding being under the act of 1845, no judgment could be entered or execution issued except as provided in that act. The proceeding was by scire facias, under the eighth section of that act, which declares that “ it shall be lawful for the plaintiff to proceed by scire facias against the original debtor, and against all and every person or persons owning or possessing the property against which he wishes to proceed; but no judgment to be rendered on the scire facias shall authorize the issuing of any execution except against the property charged with said lien, or such part thereof as the court shall direct.” The court held that under that section there could be no judgment without the presence of the owner on the record.
In this case, the proceedings were under the act of 1857,
The case of Hauser v. Hoffman, 32 Mo. 334, did not touch the point.
The act gives a lien from the time the materials are furnished, and that lien was subsisting at the time Eerguson became a purchaser of the property. He bought subject to it, and there is no hardship in holding him to his bargain as he made it. The single question is, does the statute make it necessary that he should be a party to the proceeding ? Obviously the suit could be prosecuted to judgment and execution without his presence on the record. He could be made a party, but it was not necessary that he should be. The only necessary parties are the parties to the contract. Here the parties to the contract were parties to the record; and the judgment has all the necessary parties to make it a regular judgment under the law. Being such regular judgment, does it fail to have the only effect which the law provided it should have ? The only design of the law was to secure and enforce the lien; and when its requisites have been complied with, it is scarcely possible that the final judgment should be a mere nullity, with no effect whatever. It is true, those not made parties are not bound by the judgment; that is, they may impeach its regularity, as was done in the case of Hauser v. Hoffman, mentioned above; but until so impeached, it is a valid judgment, and a sale made under it transfers the title as to all who were made parties to the record, and those claiming under them.
Judgment reversed and cause remanded.
