*1 C., adopted opinion foregoing Sturgis, PER CURIAM:—The judges concur, except Says, opinion of the' court. All of the cause Voting, because not a member of the court at time J:, not was submitted. Corporation, v. Croatian Company, Hardware
Schroeter Brothers Gymnastic Appel Corporation, Association, “S okol” George (2d) lant, Moeller. 58 S. W. 995. One, Division March 1933. *2 Simpson Conrad Paeben Jeffries, & appellant. Plummer for *3 Campbell Eigel respondent. W. S. Geo. *4 Tobin, A. Stamm Maurice Gustave L. Stewart for Edward (cid:127) Bankruptcy.
Trustee in *6 446
HYDE, equitable authority action, brought C. This is an under rights of Section Revised Statutes determine the improvements mechanic’s claimants in certain land and in the city In land, fronting St. Louis. tract owned a 125 on running feet the north side of Chouteau Avenue and back alley. 150 an building feet to There brick was a resi- and also a dence, property, by appellant which were used in its various Appellant voluntary but, activities. formerly ivas a association, year, incorporated it providing under the statute for benevo- lent, corporations. educational and charitable This was pur- done plan larger building suant to a to erect a new and for its members. Out of building, the construction of this new arose the mechanic’s liens involved here. evidence, although rather indefinite dates, as to seems to show history building new substantially, as follows:
In the fall wrecking buildings of the old was commenced. This work was done under a wrecking only. contract for the A separate contract was entered into about the same time with another firm excavating part front wrecking of the lot. The excavating was done in two sections: “First wrecked part the front and excavated it waiting and then they ground until up was cleared to wreck front the rear end of it.” A separate con- tract was also made with another lay contractor to the foundations building. for the new He January, did this work about 1926. Dur- ing progress wrecking portion of the rear of the old building, it was determined that about one-half of the east wall and wall of two-thirds of the north about old was sound part used be wall of and could foundation and the new standing. building. accordingly These walls were left early In the *7 1926, were part upon of. contractors asked to bid the construction building, in remainder the plans of of. accordance with spe- the and by appellant’s which been drawn cifications had architect. The bricks buildings from salvaged the old were to for be used the walls of building. Respondent the new Moeller was the successful bidder into contract with appellant him, 1926, and entered dated March 22, complete $74,000. building began for to the Moeller work in early on April, part building, the front of where there be were to putting pier and column stores, by footings. in He related the progress further the work thus: work, brickwork,
“Started cut-stone put down the cut-stone base; up columns; then we set iron then started we with the got and down with the in brickwork brickwork front of the build- first, on, they after ing portion and then later had the removed, rear until, working portion building on started the rear we were roof, working and then on the we started on inside. Before we got roof, we all the floor joists, on laid little subfioors all over joists building; ceiling put joists, we on the and putting roof sheeting building, skylights.” roof for the whole and the —the 1926, June, however, footings about the front In time the completed started, and the brickwork appellant’s officers decided change building part the east swimming to from a pool to a change show. picture carry To this out had plans additional specifications and drawn and entered into a contract with Moeller $16,800. carry them building progressed to out for As ap- changes. pellant’s September desired further On 13, 1926, officers proposal changes Moeller submitted a written to make in the boiler gymnasium, and in drawings, room accordance with revised for a $1,085. charge proposal accepted. This On 2, 1926, October proposal submitted a written to brick, Moeller furnish new face for $1,286. front wall part walls, and of the side for This w!as During November and December Moeller accepted. made other construction, proposals including retaining for extra wall, flag a things pole, skylight and other desired but appellant, not included original aggregating plans, $2,253, which were ac- likewise January 25, On proposal Moeller made a written cepted. for building stage dressing rooms, $2,480, a for which appellant and accepted Appellant accepted. proposal platform further for a also On building, 3, 1927, show $108. for March Moeller a made garage, part to and a proposal build club room in a space originally planned $5,714, gymnasium, for the for which 'appellant accepted. On March Moeller a further pro- made written accepted $1,070. Appellant also posal partitions for additional made, proposals these acceptance of all of proposal. Budrovitch, had who president, Mr. appellant, its on behalf operations. In addition to this additional charge writing, Moeller proposed accepted in construction which was ag- other smaller items him for a owed number claimed he $2,669.58. sand, cement and gregating These included contractor, to sidewalk sidewalk build the appellant’s furnished building, excavating hauling, putting extra in front of the sanding it, call molding specifications did not picture where the plumbing, oiling floors, putting in and other extra ventilators Moeller items for work material. number of other such change verbally agreed Budrovitch with also that he testified gypsum tile building from well burned hard partitions in the ‘title changes in agreements made other minor such verbal and also *8 original specifications. the pro- Company made a Brothers Hardware
Respondent Schroeter 1926, furnish all posal, appellant accepted 17, to December for building, required by specifications, for the the the hardware Company claimed also to have furnished additional $900. This hardware, While evidence to $71.05. of the total value of there ivas were, or price there was no evidence as to the show what these items thing being charge only shown that a of them, value of the total Company bank- for all of them. This into $71.05 was made went filing ruptcy, claim, bankruptcy in has a lien and the trustee after will, however, convenience, as We plaintiff. been substituted for plaintiff refer to as Schroeter Brothers. financing arranged appellant to by seems have been about Moeller, original contract made with but
sufficient for it could changes strain not stand the of the and extras. At the time the commenced, appellant $12,000 mortgage wrecking owed a old on the organizations building. Donations from its members and kindred- evidently pay were sufficient to most of the work. preliminary work, appellant To of the finance remainder a deed executed 1926, February 20, to Guaranty Company of trust on the Title of Louis, trustee, St. as for the holders of the notes This described. $100, $1,000, $500 trust deed secured notes in denominations of and aggregating $100,000. Appellant attempted to sell these notes to its only dispose $12,000 to of about members, but able of them. mortgage. arranged pay Most It of this was used off old job after went "about two or three months Moeller to obtain $75,000 by remaining $88,000 putting up "a loan of of .notes security. got pay making Moeller thereafter his by collateral an Budrovitch, month to estimate of his work each who took it to the gave -They this loan. Moeller cheek based on parties made who this estimate. conveyed: 22, 1926, appellant strip one Milo Duchon June
On ninety-five adjoin- long and feet wide and feet of land seven one-half building. date, On the ing picture part same show securing notes, part money in purchase trust executed a deed of Rumer, $2,400, aggregate of to "Walter W. trustee for Milo sum prior purchase. all in The foundation was to this There Duchon.
was no evidence to show who were holders of notes secured (except of trust appellant’s of the deeds either members (cid:127) n them). bought of some parties'- petition Brothers’ made in defendant, Schroeter addition Guaranty Company, appellant, a'corporation; Title Trust Walter n n Duchon, George Rumer, Moeller, Milo the unknown owner promissory 'by or of certain notes secured owners described Gymnastic Ty a deed of trust executed Croatian “Sokol” Associa- day February, tion, dated the 20th and recorded 23rd day February, page 474, at book records City -Louis, office of the Recorder Deeds of the of St. Missouri, or being said unknown owner owners said notes- consorts, or heirs, devisees, donees, alienees, unknown consort im- mediate, remote, voluntary involuntary grantee mesne or or said Guaranty corporation; Company, Title Trust and of holder or thereby notes described" secured, holders of the therein heirs, assigns, legal representatives, their executors or administra- tors; the unknown promissory *9 Association, Gymnastic corporation, “Sokol” day a the 22nd dated 1926,' June, day of-June, of and recorded the 23rd -in book '52, 4493, page of the records of the office of the Recorder of Deeds Louis, Missouri, of City the of St. said unknown or owners owner of being consorts, heirs, deviseés, said notes consort the unknown or donees, alienees, immediate, remote, voluntary mesne or or -involun- tary grantees of Walter W. Rumer and Milo Duchon. alleged petition
The belief: part negotiable “That all or promissory the notes described by and secured the two deeds of trust specified,- hereinbefore were by named, by those beneficiaries therein dr owners of subsequent trust, the said notes and deeds of afterwards, value, fob sold, en- negotiated to, dorsed and transferred to and and now held and are by parties tpithis owned a or party unknown plaintiff; that said un- party by known parties, or of being reason the or owner owners of said notes and trust, of said deeds of an have interest in afore- estate, said real and in the aforesaid building, appurtenances and improvements subject and is or are interested the- matter this .in interest of such unknown suit, and and in
petition trust, sub- and deeds and of said notes owners owner or is and derived as herein- suit, and are ject petition of this matter extends, knowledge plaintiff of this so far as the specified, before through nego- claiming parties or or said party unknown said particularly described and notes hereinbefore promissory tiable securing them.” trust two deeds of judgment $971.05 for and a mechanic’s petition asked prior superior and lien to the two as a
against the and land rights and of the interests that “the various deeds of trust and claimants of other liens mechanic’s lien claimants and the various and improvements, and appurtenances building, estate said real and thereof, and en- be determined and of the owner plaintiff, of the property proceeds thereof and that a be had said forced, sale legal according respective and to the be marshaled and distributed equitable rights therein.” separate and appearance and filed a answer
Moeller his entered showing $36,831.63 setting up balance of cross-petition his account a prior judgment a him, which he and mechanic’s lien for asked due two deeds of trust. He asked also for superior and to by plaintiff. Appellant’s answer to prayed equitable relief general Appellant’s an- denial. petition.was -Brothers’ Sehroeter addi- cross-petition specific made some denials in swer to Moeller’s general alleged: and to denial tion improvements upon and building, appurtenances and
“That property constructed, real to have been to this defendant’s according completed by strictly the defendant Moeller erected and provided in written en- specifications as- plans to contracts defendant, this de- into defendant Moeller and this but tered other, defendant Moeller states the fact to be used fendant .that defective materials the erection and construction of inferior and improvements appurtenances, performed building, building and improvements incident to the erection said labor manner, in -an unskilled and all appurtenances unworkmanlike contrary said several contracts.” terms Guaranty pleading Company, was filed on behalf of the Title
No Burner, any *10 hearing following opening before the referee the statements by appellant’s' made counsel: were ‘ ‘ Beferee, statement, may Paeben : I' make this Mr. Mr. at presentment' plaintiff, of the claim of of plain- outset: The get your understanding, know, here, -you tiff that Honor will some contention, be, plaintiff may in this case en- my will be of what lien, priority trust, one ahead of the but not deeds to titled a for plaintiff the contract of the furnish- this reason that this and for building question into in was entered ing hardware on the Association, Gymnastic Sokol directly the Croatian with plaintiff general contractor, they not under the are subcontractors so ,of priority over these deeds not a trust. their lien would have Now, your is contention to the other de- what “The Referee: . fendants? . . be, Well, general will my position so far as the “Mr. Paeben: he, perform in concerned, didn’t his contract a that contractor good wouldn’t many consequently instances be entitled to a lien.” the liens and the trust was priority
The issue of between deeds throughout Appellant’s position trial. stated as live one follows: building has in the course of erec-
“Mr. Paeben: Where been begun improvements work that the contract —or have tion. suspension period in over
there is a the work of time and the deed property, contractors come on prop- on and other trust is time, subsequent they erty priority deed that do not take over the to of trust.” inquired counsel: appellant’s
The Referee you going produce at these “Are evidence show what time for; engaged various work were various contractors finished the instance, his work what time for what time the wrecker finished work, man in put what time the that the excavator finished his foundation his work? finished (Budrovitch)'.” showing I “Mr. Paeben: am that this witness by appellant It case was tried will therefore be seen that, but there commenced theory that the work before the deed complete $100,000 was a abandonment .the Moeller. before contract was made executed and trust was with. question. to the facts on against appellant as found The referee for the full of Schroeter Brothers amount found favor The referee items; Moeller on all but two He favor of found they claimed. threshholds, $236 and one for floors marble $125 for one for tile referee, recom- These were disallowed. plaster cornices. for for, $1,085.08, judgment in- Schroeter Brothers mended judg- filing He recommended report. his interest to date of cluded interest. which likewise included $40,664.97, for Moeller ment liens, origi- upon judgments be both the these He recommended strip, prior one-half foot the seven and also nal 125-foot lot and exceptions report to this Appellant’s of trust. both deeds with the referee’s in accordance decree was entered overruled and a *11 provided recommendation which an execution for sale real of the improvements estate provided and the and thereon, pro- that paid out, ceeds be to pay second, marshaled first, costs; to pay third, liens respondents, the two mechanic’s proportionately; pay to the owners or holders of the notes secured deeds two (whether stated) of trust proportionately ; or otherwise is not pay fourth, any remaining appellant. to balance to From de- appellant appealed. cree has
Appellant thirty-six assignments sets out of error. in sub These, stance, was restate what up its’exceptions set to the referee's re port and general in its motion for new trial. Some these are specific. not Many them propositions previously of! restate the same stated in others. Some are not being abandoned to referred points more’-helpful and authorities. It would be to the court upon appeal clearly if relied those Appellant’s were stated once. finally to propositions: contentions seem come to these That down priority Duchon of trust was to me deed entitled over the th,e¡ given purchase chanic’s liens because it was price; for the that $100,000 priority deed of trust was entitled to over the mechanic’s liens because it executed was and recorded before were contracts respondents; made with that Schroeter Brothers’ lien was statement insufficient it lien prop to entitle to mechanic’s because it was not erly itemized; and that Moeller’s lien statement was not sufficient to. entitle him lien it was upon to a mechanic’s because several based separate itemized, was contracts, properly not included non-lienabl’e just items, and was not We consider and true account. will first sufficiency question priori statements and then.the equity, hearing ties. “This one in its must ease is here we .and’to Hill, 236 apply equity appeals.” [Huggins the rules of such v. S. W. l. c. ] 1053. The lien Brothers statement Schroeter set out a list of articles it for appellant, of hardware claimed to have furnished charged proof $971.05. it the sum of Its showed a contract required by spe to furnish plans all architect’s hardware proof $900. cifications for Its further it furnished showed (which separated number of other items not were in the statement which, contract, items) from These, charge for $71.05. it made the keys items, exception of which were some delivered with Budrovitch, There ordered delivered to Moeller. all ¿as satisfactory was no evidence to what value reasonable items, charge it only appearing $71.05 these additional that the any satisfactory was made for all them. Nor was evidence .of there pro Moeller in all ordered these articles. of his agreed posals changes,- additions and modifications to furnish employees all work Brothers’ said and'material. One of'Schroeter charged not appellant. extra items should have been these Since only a contract for a price, Brothers had definite it Schroeter price in the statement necessary set out lien’ the contract County Building St. contract ex rel. Francois material. [State *12 522, Reynolds, 1035; 288 232 S. Assn. v. Mo. W. & Loan Grace v. 65
Nesbitt, 1118; Francisco, 109 18 Hilliker v. Mo. 9,Mo. S. W. 598.] meruit, However, quantum on when an account is based one all articles furnished does not suffice. v. lump sum for of the [Rude We, therefore, against 11 365, 97 S. W. hold Mitchell, Mo. 225.] item, $71.05 both because there Schroeter Brothers on the was not it in lien statement and because do a sufficient account of we proof liability part ap not find tiie sufficient establish on charge $71.05. for óf The decree pellant should be modified $900 claim for and the interest ac allow the of Schroeter Brothers on that crued amount. objections in appellant’s
We merit the lien find no state description It contained of the work and' a ment Moeller. a state writ, original price ment of the contract under contract and each changes That fax proposal ten additions. was' sufficient so written were rel. Fran as these contracts concerned. ex St. [State County Building Reynolds, cois & Loan v. supra.] Assn. other of material labor to have items claimed been furnished at the they request sufficiently since orit, verbal of Budrovitch are set show furnished, material, each amount the date and the and kind of work, and since the kind of in. connection with which various furnished, items, material can or labor be determined from contemplated by lien law ‘is á the account. “The account such apprises public fairly statement the claim as owner and ” the nature amount demand as á asserted lien.’ 743; Reynolds, 266 182 S. W. 595, rel. v. Mo. O’Malley ex [State 244; App. 182 Mo. 168 S. W. Robson, Banner Lumber v.Co. 50, 40 Allison, Planing v. 138 S. We hold
Mitchell Co. Mo. 118.] It that Moeller’s this test. is true Moeller’s lien statement meets that and, disallowed items which referee statement contained some not al stated, others which should be are there some hereinafter some items ITowever, the fact an account contains lowed. that that or disallowed does not effect are not which are which lienable of some least, in absence good, is at part of the account which Smelting Mining & Frumet showing v. faith. & Co. bad [Allen 349; Robertson, 25 S. W. 120 688; 73 v. Mo. Co., Mo. Walden Machinery ; 1110 Landreth Hughes, 679, 34 W. v. 133 Mo. S. Ittner Heating Nicol & 681; S. W. Roney, App. 474, v. 185 Mo. Co. 171 App. Co., 187 Mo. Plumbing & Sons Co. v. Construction Neevel (Mo. App.), 161; Co. Craig Furniture 174 S. W. v. McNichols By greater portion S. W. far the account based Moeller’s 793.] upon written contracts for dis- definite sums. The items which are are for small easily separated allowed amounts can be from They charges rest. improper they are not such that show bad faith. might proper. evidence have some of There Additional shown them many changes were so made on behalf of and their busi- loosely things so ness was handled is no that it wonder some that fact, were overlooked. In principal pay cause of failure to out subsequent and all the seems to be due difficulty fa,ct appellant’s did not what kind officers decide fo building they or they
wanted at least what in it until wanted some building. time after let complete had contracts to Appellant makes contention Moeller’s further lien upon separate based several distinct and not contracts could perfected filing ap Appellant’s be one lien statement. idea parently statement, separate is that Moeller should have filed proposal for each new changes, additions and within six months *13 completion the separate proposal. after of the work under each We suppose bring this also that he separate means should a suit on each necessary ninety day period. one if within to be the We unable are any requirement to find such in our lien mechanic’s law. Moeller complete contracted to a which building, only had and foundations walls, complete building. but he contracted to one only some The various proposals, which and appellant accepted, he made were, merely original modifications of additions to his and contract. building he, completed building, was still the same with the same The( outside dimensions, number of stories same and it remained a building, original general purposes. for The constructed the same things single parts various he did were all additional same since were done main being per whole while the contract was formed, building part the, before was finished as a work and building original, of completing the C. contract. R. under [18 66; 177, 934, p. 207, p. 331; L. 40 J. 35 R. 268, sec. C. sec. sec. L. S.) long (N. any part building A. '908 “So is a note.] so, may any is incomplete, shape the whole and be into moulded excluding suit wishes of without so owner, alterations from the benefit of lien law.” made- Mechanic’s [Phillips Liens, building A sec. contractor a house does not have 220.] completes one mechanic’s lien when he the kitchen and file another (even completes though plans he the bathroom the first did when bathroom). stops work a provide for a If new not contract separate complete made to the new contract is and dis later it. 142 App. [May Mode, from the old. v. Mo. tinct S. building So, owner a small for also, if the contracts fbr mak 523.] commenced, has ing by later, hand and after construction articles changes by factory operated requiring larger steam much building buildings, additional new will be establishment entirely an different considered structure and mechanic’s will liens change. back Appeal, not relate 30 Pa. St. [Norris’ 122.] Likewise, when material is furnished under several independent contracts, these do not constitute one contract. then, Even it has been held that all such contracts can be embraced in one ac- count, if which is sufficient it is within six filed months after the completion of the work under each Nesbitt, contract. v. [Grace 9, 18 S. W. Mo. We that Moeller’s hold work was all es- 1118.] sentially complete one transaction and that the various additions changes independent were not new and contracts but were part all complete building. of his contract to
We, however, hold that certain items which Moeller has charged 12,600 for not pounds should be allowed. One of these was coke, $69.19. evidence shows that' this used Moeller plasterers working to heat the while his were there. This doing was for his own benefit in the work and should not charged through be it. oversight Moeller admitted that he specifications. failed to fulfill some of architect’s These inspection overlooked on and were never called to his attention appellant, reason, equity, why but paid there is no he should be something he did not furnish and the value of these omissions should be deducted from the amount of his lien. as fol These are M seven-eighths lows: The china B closets were not lined with flooring; the heater in was not with the flue the basement connected galvanized pipe containing damper; iron a back there was no copper fourteen-ounce flashing roof and the fire walls of between the building (this glaring important seems to have been the most *14 flanges oversight); likewise, were, copper pipe there no sixteen-ounce through should be pipes where the vent came the roof. The decree by these in- modified to claim value of reduce Moeller’s lien the completed judgment lien for the items. He is entitled to and a thereon. balance of his claim with the interest accrued brings question' priorities. Respondents both This us to the of argue that, holders, since both named and the trustees and note unknown, defaulted, raise that have there is here entitled to no one doubt, That, true question, so. no is appellant and that cannot do equitable is an an mechanic’s lien. This of action at law to enforce a very which is 1929, action under Section Revised Statutes by up in be set one may broad its terms. In an action a such pro it the enforcement of against codefendant and his defendant Smallwood, 302 256 S. by Mo. [Early vided the v. decree. in (l. 110) equity once “A court : of The court said c. there 1053.] will parties
possession having jurisdiction of the res and 456 relinquish
not its hold until has complete adequate it done and justice parties. to all It long has arm doing'.” de so The liens, of priority always termination of equitable been a of has matter jurisdiction equitable but expressly is so in made an mechanic’s lien by 1051; suit [Huggins Hill, the statute. 236 v. v. S. W. Coerver Corp., Crescent Land & Zinc pur S. W. The 3.] Mo. pose remedy ‘‘determining rights, of that is various interests liens of various mechanic’s lien of other claimants claimants says may brought any liens.” The statute ‘‘such action be owner by of any mortgagee or lessee or property affected, or of to be or it any prop holder other of thereon.” owner of the incumbrance The erty, therefore, given bring right, plaintiff, is lien claim to mortgagees priorities ants de into court in order to their have might important It to the owner to have this termined. be w'ell question be first. paid settled so he who was entitled to know would follow, however,
It does not that under all circumstances priori appeal owner would be entitled to from determination of among they agree instance, might ties between lienholders. For by priorities themselves as to their or settle the matter admissions pleadings. good lienholders why in no their There is reason why they if so permitted question not to or did be settle should however, object is, it. It to permitted the owner should be to that, provide in funds shown the record this case order to many its building, of appellant of its sold notes erection amounts, $100 and mostly members. for small *15 in the interested parties priority a over them. obtain decree of in records are by public trust far are disclosed deeds of so as. n ¡summons. seems to be that This is all by personal court service of 457 required under Section 3181. Badger Redlon v. Lumber Co., [See 650, 589; App. Langdon 194 189 Mo. S. W. Kleeman, v. 278 236, Mo.
211 S. W. If mortgage holders notes, who are unknown 877.] by records, and undisclosed public the are entitled to a notice publication, nothing there is in the record before us from which we can determine that there publication. was not sufficient The order of publication is not set out. merely The record recites that there publication anwas order of and recites one statement from it. There fore, say we cannot it give that was insufficient to notice of the pendency of an in in priorities action which equity between all me chanic’s lien mortgagees claimants may be determined. The trial court considered it irregularity proceedings of sufficient of presumed. courts record will not be The presumption other is the way. Hoffman, 115, v. 331 Mo. 52 (2d) 830; S. W. [White Waterman Chicago Bridge v. (2d) & 328 41 575; Iron Works, 688, Mo. S. W. Ry. Co., 377;
Garber v. Mo.
210
Pac.
S. W.
Ry.
Interstate
v.Co. M.
Railroad,
R. C. &
251
707,
Mo.
158 S.
349.]
We think it is
that
clear
only
Duchon deed of
is not
trust
priority
entitled to
over both mechanic’s liens but also that
me
chanic’s
claimants are not entitled
ato
lien on the
covered
land
is,
course,
it. The owner
land
entitled to raise that
is
sue. There is no
any part
evidence to show that
building
is on
bought
the land
from Duchon
clearly
and the Duchon deed of trust is
purchase money
a
mortgage.
mortgage
The deed from Duchon
day,
back to him
made
on the
which
same
was three
after
months
making
the contract between-Moeller and
and was af
working
building.
ter
been
Moeller had
more than
two months
change
was-purchased,
providing
It
when
picture
was made
a
show
room,
weight
space
for exit
and not to build on. The
authority
great
qr
State and elsewhere
a
is that mechanic’s lien
labor
material,
purchaser
land,
pur
furnished
a
is
subordinate
money mortgage
purchaser
chase
made
when he obtains
con
veyance
Lubke,
210,
of the title.
v.
176
L. 40 C. J. sec. sec. see. 377.] therefore, hold that to state that the the decree should be modified covers, Duchon land deed of trust is first lien on the whieh.it upon land the mechanic’s be confined to the liens should building. appellant’s Moeller contracted to build giving correct think, however, We decree $100,000 priority liens deed respondents’ mechanic’s over upon 1929, provides for lien trust. Section Revised Statutes for those “who upon which it is situated land *16 458 material any perform any upon, do or work or labor or furnish
shall . land any building, improvements upon . . erection or pro any . . . under or contract with the owner or virtue of trustee, thereof, agent, or or subcontractor.” prietor his contractor liens 1929, provides Section that mechanic’s Revised Statutes preferred incum for ‘work “shall be to all other and materials bridges buildings, wpon may brances which to or such be attached subsequent them, improvements, ground, or'other or the or either of buildings These improvements.” to the commencement such or provisions Long ago them to mean plain. are this court construed building clearly mortgage on an say, what unfinished that complete subject one, to the lien of who furnished material Wilson, building, mortgage was v. even after the executed. [Dubois This Mo. court then said: 2 1 213.] just or materials highly think their labor “We it that those who given building, otherwise real an have value to unfinished as creditors might should be considered finished, never have been it, pref- proceeds building, and of a sale of paid of the out building has after the to creditors whose incumbrances attach erence been commenced.” constru
This has been reached a number of other courts result that ing that have held statutes’ similar to ours. “The cases of the mort paramount lien for labor' or material was to the lien such building commenced, after but before gage executed leading furnished, very numerous. The or material were are labor Wilson, 21 Railway 71; v. Iowa, 44 Dubois Co., Neilson v. ones are 213; Serg. 138; 2 v. Pringle, v. & R. Gordon Mo. Insurance Co. ;457 Eq. 112; Meyer Co., N. 100 U. S. Torrey, 15 v. Construction J. 83 Pa. Bilsland, Appeal, 659; 18 Wall. & Davis v. Parrish Hazard’s Eq. 304.” Paulison, 28 N. 111; v. J. St. Insurance Co. [Haxtun may (N. To D.), N. W. these Co. v. Gordon Steam-Heater 708.] 488, 30 65 N. Mfg. (Wis.), McDonough v. Co. be added Vilas 490; Flint & Wall Kay Towsley 71 N. W. 778; (Mich.), L. v. R. A. Keystone 566; 38 Pac. Sugar (Kan.), ing Mfg. Douglass Co. Co. v. 273; Dement v. Eastes Sugar 40 Pac. Douglass Co., v. Iron-Works Co. [See, 827. (Ala.), 112 So. 348; v. Hubbard (Ore.), 264 Pac. LeGrand 226, p. XIX, sec. Liens, Chap. also, Phillips Mechanic’s on run made the statute authority says: “If Another 397.] back to building’ will relate it of the 'commencement from the parts but work constitute kinds of different time, especially if the sec. Liens, p. 350, Mechanic’s whole.” general [Rockel of one idle “It" is St. 83 Pa. Appeal, Parrish’s 111.] 158: p. sec. which such at of time points be two there can say Gordon, supra.] v. Co. Steam-Heater commenced.” [Haxtun ¿as spade “the first This rule been called rule” and has been thus stated: “ mechanic’s at ‘All liens commence the date the first stroke of spade, of¡ axe or continue the erection the house without: doing regard being filed, of their or to the time of the work *17 furnishing or the man materials. The who does the last the painting plumbing pari passu or him comes with who the built ” 333, wall.’ 109 Mo. Darlington, App. foundation v. l. [Hammond 343, 446; Hydraulic c. 84 see, also, Brick Bor S. Press Co. v. mans, Planing App. 664; Bormans, 19 Mo. Western Mill Co. Great v. 671; 213; Douglas
19 Mo. 21 App. Wilson, v. Mo. v. St. Louis Dubois 388; 383; McGoniglle 56 v. 62 Co., Reilly Hudson, Mo. Mo. v. Zinc Foutch, 51 (2d) Fed. 455.] ‘‘ theory improvement gives The of this rule the fact of is that the Bormans, Mo. (Brick its own notice to the world.” Co. v. 19 all 669) injustice ; anyone dealing c. App. l. and that it “works no to the itself is notice to all the property, with the work me claims. examination ascertain chanic’s It enables them ocular to mortgage) safely.”' (buy or whether do so take [Went .can statute, N. We have (Minn.), 55 W. another worth v. Tubbs 543.] gives priority over an Section Revised Statutes buildings only, is existing mortgage new but that not the as to the question in this involved case. $100,000 mortgage made, the was the new case,
In this before activity plenty on building had been commenced. There was building, ground anyone exception old with to see it. The It foundation, was torn down. northeast corner walls and ground down, excavated torn part was first seems that the front portion partly was built; then the rear and that the foundation and work com and that was there and the excavation made wrecked foundation, any rate, a new work. At pleted, after Moeller went to building was commenced tied, was part of the into which the old Anyone could mortgage was made. completed partly before the and been contract had being built. The building a new was see that excavating and for the wrecking, to another let one man for the to for a plans architect’s building to third for foundations. being carried out completed building been drawn had bids to already to obtain decided Appellant had these contractors. mortgage was executed $100,000 building, when complete the mortgage, off to money pay the old raising to purpose for the completing pay progress, pay for the work then go. It was money would as the it as far building equipping appellant members mortgage to the *18 case, respondents’ clearly the facts this mechanic’s liens are $100,000 priority mortgage, entitled to over the and we so hold. The decree is reversed and cause with remanded directions the trial that court hear evidence as to the value of items re- quired by specification, described, above which Moel- architect’s thereafter, court, furnish; ler did not that the enter its decree de- ducting and the amount the amount so determined of the other items, disallowed, account; herein from Moeller’s that its decree disallowed, items, deduct herein from Schroeter Brothers’ ac- count; fix priorities and that between the mechan- its decree $100,000 stated; liens ic’s deed of trust as herein paid it order the sold and the mechanic’s first out of liens $100,000 trust; proceeds land covered deed of mortgage strip purchase money Duehon of land covered subject mortgage lien; shall not be sold but remain to that as a first things expressed in all to the views that the decree conform Ferguson opinion. Sturgis, CC., concur. foregoing opinion C., adopted PER CURIAM:—The by Hyde, opinion judges concur. as the of the court. All of the owner or owners"of certain notes "of described and secured a deed trust-(cid:127) Croatian executed
Notes
Milo Duehon or the notes Walter holders of trust, of- March the two deeds and on an order secured ap- Thereafter, them. default was entered referee' was try report findings issues his to the At ‘the pointed all court.
These notes were securing notes $500, all deed of trust and were secured one $100,000. that, below and aggregating apparent It -in the trial here, these notes. of its members who held acted behalf had at least some proper practice would been to- have have intervene, them parties, and defend for these noteholders become any one Because of 'small interest selves and the others. protect them them, they-no association to to their doubt looked be priorities try permitted parties all out 'issue it was it is entitled .appellant’s If view that we take fore referee. appeal, question priorities on of 'the have a determination trial we think the prejudiced will not be because the lien claimants the lien question between correctly priorities court decided $100,000 will, therefore, consider mortgage. We claimants and the question. properly not holders says Appellant that the unknown were - order notice, brought given no into court because Moeller, least, cannot at publication, claim of Moeller’s
notes planned sell the building to be for the plans knew all about who Association wTork, pay went to Moeller obligated, when built. I.Noone was 460 money out any mortgage appellant’s notes. When members did respond enough long not fast to meet building payments, after gone had job on the of the notes were balance used, security, as collateral to obtain a loan pay to make further required ments building. to continue the work on the It is that true (cid:127) building if work on entirely ceases and is abandoned later resumed, under newa between parties, contract different held it is that liens for the new mechanic’s -contract cannot back to relate building originally time when the was Mode, commenced. v. [May App. 656; Stumbaugh Mo. Hall, (2d) v. 160; S. W. 40 C. J. see. That is not the situation here. The disclosed 331.] referee found that the work from was continuous the start in 1925 finding. to the finish in supports 1927. and evidence seems, his It fact, going new up even while the old build ing coming down; away when the wreckers moved leav ing building standing, the northeast walls the old Moeller’ imme diately that, built them into his walls. think- We under our statutes