43 Mo. App. 362 | Mo. Ct. App. | 1891
This is, an action on the bond of George L. Drew, as sheriff of Clark county. The suit grew out of, and is based upon, the following facts, concerning
The section of the statute (section 6727), upon which the relator’s supposed cause of action is predicated, reads : ‘ ‘ The liens for work and labor done or things furnished, as specified in this article, shall be upon an equal footing; without reference to the date of filing the account or lien.; and in all cases where a sale shall be ordered and. the property sold, which may be described in any account or lien, the proceeds arising
In order to determine the rights and claims of the 'lienors' to this fund, it will be necessary to read the foregoing section in connection with sections 6705, 6706 •and 6707 of the same law. It is only in this way that •the law can be properly understood, and the respective ■■rights and interests of the parties thereunder ascertained.
“Sec. 6705. Every mechanic or other person, who shall do or perform any work or labor upon, or furnish any material, fixtures, engine, boiler or machin•ery for, any building, erection or improvements upon land, or for repairing the same, under, or by virtue of, any contract with the owner or proprietor thereof, or his agent, trustee, contractor or subcontractor, upon complying with the provisions of this article, shall have for his work or labor done, or materials, fixtures, engine, boiler or machinery furnished, a lien upon such building, .erection or improvements, and upon the land belonging to such owner or proprietor on which the same are situated, to the extent of one acre ; or’, if such building, erection or improvement be upon any lot of land in
“ Sec. 6706. The entire land, to the extent aforesaid, upon which.any such building, erection or other improvement is situated, including as well that part of said land which is not covered with such building, erection or other improvement, as that part thereof which is covered with the same, shall be subject to all liens created by this article, to the extent, and only to-the extent, of all the right, title, and interest' owned therein by the owner or proprietor of such building, erection .or other improvement, for whose immediate-use or benefit the labor was done or things were furnished.
0 ‘ ‘ Sec. 6707. The lien for the things aforesaid, or work, shall attach to the buildings, erections or improvements for which they were furnished or the work was-done, in preference to any other prior lien or incumbrance or mortgage upon the land upon which said buildings, erections, improvements or machinery have been erected or put; and any person enforcing such lien may have such building, erection or improvement sold under execution, 'and the purchaser may remove the * same within a reasonable time thereafter.”
It is admitted by both parties that the Carson &. Rand Lumber Company’s lien not only attached to the-building, but also to the land, and that this lien on the land was not destroyed by reason of the building having-burned. Hence, it must be conceded that, at the time-the relator furnished the materials for the construction of the second icehouse, McCormick’s title to the land upon which it was built was incumbered by- the first-mechanics’ lien. L In so far as this lien on the land was. concerned, the relator, in furnishing lumber for the second
In our opinion this conclusion is in harmony with the intention and theory of the mechanics’ lien law, and it necessarily runs counter to the plaintiff's construction of section 6727. The right to prorate under this section must be confined to cases, wherein the materials were furnished or labor was performed in the construction of one building or buildings constituting one improvement, and constructed at or about the same time. To give the law a different construction might result in great confusion and injustice. The subsequent claims of other materialmen for otherQand additional structures might be so large as to practically destroy the
Under the view taken by us,- it will not be necessary to notice the other questions. What we have said disposes of the case, and necessarily leads to an affirmance of the judgment.