Ambrose Mfg. Co. v. Gapen

• Decision Date: 24 May 1886
• Parties: AMBROSE MANUFACTURING COMPANY, Respondent, v. CORA U. GAPEN ET AL., Appellants.
• Court: Missouri Court of Appeals

22 Mo.App. 397

AMBROSE MANUFACTURING COMPANY, Respondent,

v.CORA U. GAPEN ET AL., Appellants.

Kansas City Court of Appeals, Missouri.

May 24, 1886.

APPEAL from Caldwell Circuit Court, HON. JAMES M. DAVIS, Judge.

Affirmed.

Statement of case by the court.

The only facts material to be stated are as follows:

On the thirteenth of June, 1883, Eli Gapen, then being the owner of a lot in Kingston, executed a deed of trust thereon to William Wilmott, to secure an indebtedness of $1,300 for money borrowed of defendant, Nancy M. Perkins; and on September 15, following, he executed another conveyance to Wilmott, in trust to secure said Nancy in the further sum of seven hundred dollars.

On the thirteenth of October, of the same year, 1883, the plaintiff sold and delivered to Gapen, to be placed in a building which he was then constructing on said lot, some door sills, lintels and pilasters. These articles, amounting in value to two hundred and fifteen dollars, were used in the building, and were furnished by plaintiff to Gapen, under contract with him.

On the fourth of March, 1884, after the expiration of four months, but within six, plaintiffs filed their account and claim for a mechanic's lien, in the clerk's office of the circuit court of Caldwell county.

In August, 1884, Wilmott, the trustee in the $1,300 deed of trust, before referred to, at regular sale thereunder, sold the premises to the defendant, Nancy M. Perkins, she being the highest bidder, and a deed was then executed by the trustee, conveying the premises to her.

This proceeding was instituted by plaintiffs to establish and enforce a mechanic's lien against the premises, the said Nancy M. Perkins, and the trustee, Wilmott, being made parties.

On June 19, 1885, judgment and decree was entered in the court below, establishing plaintiffs' claim as a mechanic's lien against the building alone erected on said lot, and directing a sale thereof to satisfy the amount of such lien. The building, upon which the lien is established, is a large brick structure, forty-two and a half feet wide, and eighty feet long.

The appellants claim that this decree was unauthorized, and have appealed therefrom.CRITTENDEN, MCDOUGAL and STILES, for the appellants.

I. The account was not filed in time to secure the lien. Plaintiffs, being neither original contractors, journeymen, nor day-laborers, were bound to file their claim within four months, which they failed to do. The requirements of the statute must be met, or no lien attaches; and all its conditions must be performed to secure its benefits. Phil. Mech. Lien (2 Ed.) sects. 18, 19; Ex parte Schmidt, 52 Ala. 256; Parker v. Anthony, 4 Gray (Mass.) 289; Greenough v. Nichols, 30 Vt. 768; Wager v. Briscoe, 38 Mich. 587.

II. Gapen, at the time of the contract, had ceased to be the owner of the property, and the holder of the title. He had conveyed it away by deed of trust. Philips on Mech. Liens (2 Ed.) sect. 74.

III. Plaintiff's lien could not reach beyond Gapen's interest in the property, which was but a mere equity of redemption. This was foreclosed under the deed of trust. Phil. Mech. Liens, sect. 67; Otley v. Havillard, 36 Miss. 19; Crandall v. Cooper, 62 Mo. 478; Haeussler v. Thomas, -- Mo. App. 463; Monroe v. West, 12 Iowa 119; Getchell v. Allen, 34 Id. 559.

IV. It was not competent for the court to direct a sale and removal of the building. Its removal would be equivalent to its destruction. The statute contemplated no such sacrifice. Conrad v. Starr, 50 Iowa 470; O'Brien v. Pettis, 42 Iowa 293; Jessup v. Stone, 13 Wis. 466; State v. Emerson, 39 Mo. 80; Connor v. Railroad, 59 Mo. 288; State v. Divelling, 66 Mo. 375; Potter's Dwarris Stat. 138, 143, 144.

V. It was error to declare plaintiff's lien superior to defendant Perkins' title.

CROSBY & JOHNSON, for the respondent.

I. Plaintiff was an original contractor, and entitled to six months to file his account. There are but two kinds--the original and sub-contractor. The original contractor is not required to give any notice before filing his lien: because the owner is presumed to know the state of account between them. Not so, however, as to the sub-contractor. Kling v. Railroad Const'n Co., 7 Mo. App. 410; Hearne v. Railroad, 53 Mo. 324; Fulton v. M. & S. Co., 80 Mo. 265; Page v. Bettes, 17 Mo. App. 366; sects. 3190-91, Rev. Stat.

II. To make one a sub-contractor his contract must be with a person other than the owner. Cole v. Barron, 8 Mo. App. 509; Scott v. Cook, 8 Mo. App. 193; Kling v. Railroad Const'n Co., 7 Mo. App. 410.

III. A grantor in a trust deed remains so far the owner of the premises that he can bind it to the extent of his interest by building contracts. Crandall v. Cooper, 62 Mo. 478; sect. 3174, Rev. Stat.

IV. The improvement is the primary object which confers the lien, and the land is added thereto as an incident when it belongs to the “owner or proprietor.” Hodzhour v. Meer, 59 Mo. 434. The lien on the building is superior to a prior deed of trust. Stebel v. Siemon, 52 Mo. 63; Crandall v. Cooper, supra. The building may be sold independent of the land. K. C. Hotel Co. v. Sauer, 65 Mo. 279; Stebel v. Siemon, 72 Mo. 526.

V. Brick buildings are subject to sale and removal as well as others. Sect. 3124, Rev. Stat.; Hotel Co. v. Sauer, supra. There is no exception in the statute. State v. Gammon, 73 Mo. 421; State v. Heman, 70 Mo. 441.

VI. The court cannot take judicial notice that a brick building cannot be removed without destroying it. Bliss on Code Pleading, sect. 187; Dixon v. Nicols, 39 Ill. 372.

ELLISON, J.

Defendants Wilmott and Perkins are the appellants here, and they insist that plaintiff is not an original contractor, as contemplated by the statute, and that he had only four months in which to file his lien for the material which he furnished. As the material was furnished more than four months, though within six, next before filing the lien, it is claimed plaintiff has lost his right, by the lapse of the four months.

The statute, section 3172, gives the lien to mechanics or other persons, who may perform labor or furnish material, on a contract with the owner, trustee, contractor, or sub-contractor. If the contract to labor, or to furnish material, is with the owner, it is an original contract; and the contractor of the labor, or material, is an original contractor, and under section 3176 has six months in which to file his lien. I think this is the common sense of the statute, and the object intended is borne out by this interpretation. I do not include in this statement journeymen and day laborers, as it is not necessary to a decision of this case.

It is contended by appellants that the term original contractor, as used in the statute, has reference solely to those who may do service, by way of work, labor, or superintendence, upon the building.

The point is not well taken. It has been specially ruled by our supreme court, that a material man may be an original contractor, and that he is, in fact, such contractor, if he furnish the material on a contract with the owner. Hearne v. Ry. Co., 53 Mo. 324.

It is next contended by defendants that as Gapen had given a deed of trust on the property before his contract with plaintiff he was not the owner. This objection is met by the provisions of the statute itself. Sects. 3174 and 3192. It has been...