28 Mo. App. 594 | Mo. Ct. App. | 1888
delivered the opinion of the court.
This action was brought against the defendant, Raeman, as owner, and the defendant, O'Reilly, as
Such proceedings took place that, in the trial which was had in the circuit court, a jury brought in the following verdict: “We, the jury, find for the plaintiff and that he has established a mechanic’s lien for the sum of thirty-six (36) dollars against the building in the complaint described, and that such lien is prior to that of defendants, O’Reilly and Howard, as to the lots also in the complaint described.” We quote the language of
The court evidently so interpreted the verdict; for it entered a judgment thereon which recites : “ Wherefore, it is considered by the court that plaintiff has sustained and established his mechanic’s lien upon the building and real estate in the complaint described as follows: [describing the building and grounds in the language of the complaint]; and that said lien, so by the plaintiff established, is prior to the lien of M. B. O’Reilly and W. J. Howard, the appellants herein, under said deed of trust recorded November 17, 1886.” The judgment then proceeds to award a special execution “ to be levied on the building and premises herein before described. ”
In his claim of lien, filed in the office of the clerk of the circuit court, the plaintiff states, after describing the building and the grounds on which it is situated, that his account is filed “in order that it may constitute
It appears, then, that the plaintiff filed a claim of lien both against the building and land; that in his complaint he demands an enforcement of his lien both against the building and the land; that the jury have rendered a verdict which probably means that they find that he has established his lien both against the building and the land ; that they have also attempted, under the instructions of the court, to settle a question of priority in respect of his lien upon the land, between it and the mortgage of the defendants, O’Reilly and Howard ; that the court in its judgment has adjudged that such a lien exists both against the building and the land; and that in respect of the land it is prior to the lien of the mortgage of O’Reilly and Howard ; and has awarded execution accordingly.
I. A question which meets us at the outset is whether the court has any authority, in a proceeding to enforce a mechanic’s lien, to settle a question of priority between such lien and a mortgage; and especially whether the court has any authority to submit such a question to the jury. The statute confers no direct authority upon the court to settle such priorities. The statute prescribes what the judgment shall be, both where the proceeding is commenced, as here, before a justice of the peace (Rev. Stat., sec. 2875), and where it is commenced in the circuit court. Rev. Stat., sec. 3182. The statute settles certain questions of priority between mechanics’ liens and other incumbrances (Rev. Stat., secs. 3174, 3178); but it nowhere provides whether such questions of priority shall be settled in the suit to enforce the mechanic’s lien, or in a subsequent action. Especially must it be observed that the statute in terms confers no such authority upon justices of the peace in proceedings to enforce mechanics’ liens. It provides that “the provisions of the mechanics’ lien law, with respect to acquiring such lien, and the enforcement thereof, and as to all matters hot otherwise specially
Then, as to the manner in which the question of priority was determined, it should be said that it was established by the verdict of the jury. But this was done upon a hypothetical instruction in which the court applied the law, as understood by the learned judge, to a state of facts which the evidence tended to show. We are, therefore, not prepared to say that, if the question of priority can be settled at all in such a proceeding, it can be settled in any other manner than the manner in which it was submitted to the jury in this case — by hypothetical instructions which apply the law to the evidence and leave the jury to find what the fact was, and to resolve it by saying that the lien had or had hot a priority over the mortgage.
II. Assuming next, for the purposes of this discussion, that power existed in this case to settle the ques
“ Received of Felix Raeman this, October 11, 1886, fifty (50) dollars on account of the purchase of Elliot
“W. E. Smith, for oymer.”
This memorandum clearly does not embody a contract of purchase, but it shows that at the time when it was given no such contract existed, because it shows that the owners had, notwithstanding the payment of the fifty dollars, the right to repudiate the bargain made by Smith and Raeman, in which case the fifty dollars was to be returned to Raeman; and there is no evidence whatever in the record that at the time when this money was paid and this receipt taken a verbal contract of purchase had been made, such as would have been good under the statute of frauds by the fact of the owners delivering :and Raeman taking possession and making improvements. The inception of Raeman’s title, according to the evidence, was on the seventeenth of November, 1886, when two deeds were delivered to him by Smith acting for the owners and filed for record simultaneously with the mortgage of O’Reilly and Howard. One of these was a quit-claim deed from Mrs. Ingraham to Raeman, the other was a warranty deed to Raeman from Mr. McClelland, as executor and trustee of an estate, the administration of which was in the state of Ohio. Moreover the evidence shows without contradiction that all of the purchase money by which the consideration for the purchase was paid by Raeman was advanced by Howard under this deed of trust. The greatest care was taken by Howard and by his attorney, as would appear from the record, to avert the contingency of mechanics’ liens attaching and taking priority to this deed of trust. Nor is there any evidence tending to show that Raeman took possession of the ground and began excavating prior to the delivering and filing for record of these title papers, on the seventeenth of November, with the knowledge or consent either of the vendors or of O’Reilly or Howard. If he took possession prior to that date, he
The foundation of mechanics’ liens is, under the language of Revised Statutes, section 3172, a contract “with the owner or proprietor,” “or his agent, trastee, contractor, or subcontractor;” and while, as we have held, the nature and extent of the title-of the owner is not, in actions to enforce a mechanic’s lien, a proper subject of investigation (Cole v. Barron, 8 Mo. App. 509, 512; Chambers v. Benoist, 25 Mo. App. 520; Brown v. Wright, 25 Mo. App. 54), yet this has been upon the ground that the proceeding is not strictly a proceeding in rem ; that the judgment does not condemn the property, irrespective of the question of ownership therein or liens thereon, as is-the case in a proceeding in admiralty against a ship for salvage, or a proceeding under the United States revenue laws against liquors or tobacco which become the subject of seizure for violations of such laws, but that it is a proceeding to condemn the interest which the-owner with whom the contract is made had in the property at a certain date — in most cases at the date when, the building was commenced. Now, if it conclusively appear that at such date a person, who subsequently became the owner, and with whom the contract was subsequently made, had no title or interest in the property whatever, upon what principle can a judgment or decree be rendered, not merely subjecting any interest which he-may have then had, but in terms subjecting the land, to the exclusion of a lien which took effect simultaneously with the acquisition of title by him % In this case, upon well-settled principles, the title did not come into
The error of the court in adjudging a lien to be prior to the mortgage is still more apparent when it is considered that the court submitted to the jury the question whether Raeman was the owner of the building in November, 1886, which may have been, and probably was, understood as referring to the date in November, 1886, when the work on the building was commenced. If it was intended to refer to such a date, then it submitted to the jury a proposition of fact in support of which there was no evidence ; if it was not so intended, then it was misleading and confusing, since it may have been so understood.
We have proceeded to state our conclusions upon a state of facts which are undisputed upon this record, and our conclusion upon these facts is, that the court erred in submitting to the jury the question whether the plaintiff has a lien prior to the date of the mortgage of O’Reilly and Howard.
III. In the account filed by the plaintiff with his claim for a lien, the work for which he claimed the lien was itemized thus : “One hundred and twenty hours’ work at thirty cents per hour, thirty-six dollars. Said work was begun March 3, 1887, and finished March 19, 1887.” This was sufficiently definite in a proceeding
IV. We do not deem it necessary to consider any other question which has been presented to us ; since it is possible, and hence proper, to direct the proper judgment upon this verdict, rejecting as surplusage so much of it as deals with the question of priorities. Under any view the plaintiff is entitled to a lien upon the land to the extent of Naeman’s interest therein, and he is also entitled to a lien upon the building. As a judgment which is rendered in a mechanic’s lien case should not take the form of adjusting such priorities, unless the parties consent thereto (and here they do not) the court should have entered a judgment in the usual form re - citing that the plaintiff has established his lien upon the lot of ground described, and also upon the building thereon. This will leave the question of priorities for future adjustment.
The judgment of the circuit court will be reversed and the cause remanded with directions to enter such a judgment. It is so ordered, with the concurrence of all the judges.