Badger Lumber Co. v. Stepp

• Decision Date: 26 June 1900
• Citation: 57 S.W. 1059,157 Mo. 366
• Parties: BADGER LUMBER COMPANY v. STEPP, Administrator of KING; LILLY; and COON et al., trustees KNIGHTS OF PYTHIAS, et al., Appellants
• Court: Missouri Supreme Court

57 S.W. 1059

157 Mo. 366

BADGER LUMBER COMPANY v. STEPP, Administrator of KING; LILLY; and COON et al., trustees KNIGHTS OF PYTHIAS, et al., Appellants

Supreme Court of Missouri, Second Division

June 26, 1900

Appeal from Grundy Circuit Court. -- Hon. P. C. Stepp, Judge.

Reversed.

S. C Price for appellant Lilly.

(1) Different parts of a building may be owned by different parties. 1 Washburn on Real Property (3 Ed.) 12, 335; Newhoff v. Mayo, 48 N.J.Eq. 619; Hahn v. Baker Lodge, 21 Ore. 30; Cheeseborough v. Green, 10 Conn. 318; Rhodes v. M'Cormick, 4 Iowa, 368; M'Cormick v. Bishop, 28 Iowa 237; Tiedeman on Real Property (2 Ed.), sec. 621; Ottumwa Lodge v Lewis, 34 Iowa 67; Loring v. Bacon, 4 Mass 575; Wyman v. St. Louis, 17 Mo. 337; Wash. on Easements (4 Ed.), 639; Graves v. Besban, 26 N.Y. 498. These authorities settle beyond question the proposition that as to the building on the lot in question in the suit at bar, Mrs. Lilly is the owner of the first and second stories and basement of said building, and that the Knights of Pythias are the owners of the third story, and that they and Mrs. Lilly are not tenants in common as to any of the property involved in this suit, but are separate owners of their respective parts of the building. (2) Where there are separate parties and separate rights there must be separate liens; and since in this case separate owners are sought to be charged in one account, and the separate properties of separate owners are sought to be charged in one lien, the lien must fail. Kearney v. Wurdeman, 33 Mo.App. 456; Dugan v. Higgs, 43 Mo.App. 166; Phillips on Mech. Liens (3 Ed.), 657, sec. 373; Gorgas v. Douglas, 6 Sarg. & R. 512; Kerbaugh v. Henderson, 3 Phila. 17; Davis v. Farr, 13 Penn. St. 167; Edwards v. Edwards, 24 Ohio 402; Allen v. Milling Co., 73 Mo. 688; Henry v. Mahone, 23 Mo.App. 87. (3) The account filed in this case is not a just and true account within the meaning of the Mechanics' Lien Law, and will not support the lien sought to be enforced in this case. R. S., sec. 6709, requires that the plaintiff in this case should have filed within the time therein limited, with the clerk of the circuit court of Grundy county, a just and true account of the demand due it after all just credits were given with the name of the owner or contractor, or both, if known to its agent. The account filed for a lien in this case does not meet these requirements, for several reasons: First: Because Mrs. Lilly can not know from the account filed how much is due plaintiff from King for materials which entered into the construction of her building. Reitz v. Ghio, 47 Mo.App. 289; Nelson v. Withrow, 14 Mo.App. 277. Second: This is not a just and true account because there is a mingling of several accounts. Reitz v. Ghio, 47 Mo.App. 287; Schulenburg v. Robison, 5 Mo.App. 564; Phillips on Mec. Liens (3 Ed.), 657; Planing Co. v. Christophel, 60 Mo.App. 106. (4) A mechanic's lien can not be enforced for materials unless they are furnished under a contract with the owner, or his contractor, agent, trustee or sub-contractor. And since the materials furnished by plaintiff for the Pythian Temple were not so furnished as to Mrs. Lilly, the lien for them can not, under any circumstances, be enforced against her property; and since the items of those materials are so commingled and confused with others, in the account filed, that they can not be separated except by extrinsic evidence, the whole lien is lost. R. S., sec. 6705; Planing Mill Co. v. Christophel, 60 Mo.App. 111; Hause v. Thompson, 36 Mo. 451; Hause v. Carroll, 37 Mo. 578; Barker v. Berry, 8 Mo.App. 446; Horton v. Railway Co., 84 Mo. 602; Mill Co. v. Brundage, 25 Mo.App. 268; Page v. Betts, 17 Mo.App. 366; Mollahon v. Vickery, 4 Mo.App. 225; Woodward v. McLaren, 100 Ind. 586; McAdow v. Sturtevant, 41 Mo.App. 226.

O. M. Shanklin, R. T. Linney and O. G. Williams for appellant Lodge.

(1) There is an improper joinder of parties defendant in this case. As there were two separate and distinct owners and two separate and distinct contracts for building, a single lien could not be enforced against the property. Sec. 6729, R. S. 1889. The section of the statute above quoted, was never intended to cover a case where the improvement was erected by different owners and under separate and different contracts; for it is specifically provided in the section that in order to enforce a single lien against two or more buildings, although connected and erected together, and under one roof, they must have been erected under one general contract. Sec. 6706, R. S. 1889. (2) This instrument is a clear absolute conveyance from Mrs. Lilly to these defendants as trustees of the lodges, and clearly divests her of all rights, title and interest in and to that part of the building sought to be conveyed by said instrument as well as her interest in the ground upon which the improvement stands to the extent necessary for the enjoyment of the use of the improvement thereon. 15 Am. and Eng. Ency. of Law, 7; Roby v. University, 36 Vt. 564; 15 Am. and Eng. Ency. 9. (3) The lien is upon whatever interest the builder of the superstructure may have therein. McCreary v. Osborn, 9 Cal. 119; Johnson v. Dewey, 36 Cal. 623; Worden v. Hammond, 37 Cal. 61; Goldhime v. Clark (Md.), 13 A. 363; English v. Foot, 16 Miss. 444; Garrett v. Stevenson, 3 Ill. 261; 15 Am. and Eng. Ency. of Law, 10. (4) Our statute gives a lien by virtue of a contract with the owner of the land and section 6706 extends this lien to any interest such owner may have at the time of the contract; if he has only a bond for a deed, he can not by any act of his impair the title of his vendor or give the mechanic or materialman any better title than he himself had at the time he made the contract. Hickox v. Greenwood, 94 Ill. 266.

Botsford, Deatherage & Young and Harber & Knight for respondent.

(1) In this case there is no mingling, in the account filed with the mechanic's lien of plaintiff, of lienable and non-lienable items, and the reported cases where such mingling took place and was condemned do not apply to the case at bar. Price v. Merritt, 55 Mo.App. 640. There are no items in plaintiff's account in this case that are non-lienable under our lien law. Neither can it be objected that this case comes under the law of those cases where the lienor lumped several items in one sum. In this case the account is carefully and correctly itemized and stated with particularity and definiteness, and no part of the account is a lumping one. If the material sued for in this case had been furnished by two different materialmen, as in O'Connor v. Railroad, 111 Mo. 185, the case would be different. Here all the material sued for was furnished by the plaintiff. Nor does the case of Dugan v. Higgs, 43 Mo.App. 161, apply to this case. (2) In this case now before the court, there was only one contractor, King, to whom all the material sued for was sold by plaintiff, and King was the contractor of all the owners of the property charged with the lien. There was no abandonment by the first contractor, and no successive contracting parties, as in Dugan v. Higgs, supra. Bambrick v. Church Association, 53 Mo.App. 226. (3) Our mechanics' lien law (sec. 6705, R. S. 1889), gives the lienor a lien upon "any building, erection or improvement upon land" for his material furnished therefor. The law gives the lien on each building for which materials are furnished. Accordingly it was held in Fitzgerald v. Thomas, 61 Mo. 499, and other cases, that different buildings on different lots, although the lots were contiguous, could not be united and proceeded against by the materialman in the same lien, and this continued to be the law until changed by sec. 6729, R. S. 1889. But it has never been held that a materialman, who furnished material for an entire building, should divide up his account and file a lien against each room or each story of the building. Secs. 6706 and 6707, R. S. 1889.

GANTT, P. J. Sherwood and Burgess, JJ., concur.

OPINION

GANTT, P. J.

This action was commenced in the circuit court of Grundy county to enforce a mechanic's lien on a certain three-story building in the city of Trenton for $ 2,686.11.

The administrator of King filed his separate answer in which he pleaded that he had no knowledge or information sufficient to form a belief of the matters and things alleged in the petition and therefore denied each and all of the allegations therein made.

Mrs. Lilly also filed a separate answer which consisted, first, of a general denial; secondly, that she was the sole owner of the lot described in the plaintiff's petition, subject to a certain deed of trust in favor of David W. Coon et al., and that the other defendants had no interest in said lot except as hereinafter stated.

"Defendant further states that during the years 1895 and 1896, she had erected on her said lot a two-story brick building with a basement, and that defendant John W. King was the contractor with her for the erection thereof, and that the said building was erected for her by said King. After the erection of said two-story building had been commenced by said King, this defendant granted to defendants Robert T. Linney, James Fitzpatrick, Charles S. Proffit, Otto Stein, Paris J Hendrickson and James R. Miller, by deed duly executed and acknowledged on the fourteenth day of February 1896, the privilege of erecting over and upon this defendant's said two-story building a third story thereto, the said grantees, their grantees and assigns forever owning and controlling the said third story. Said deed was filed for record in the office of the recorder of deeds within and for Grundy county, Missouri, on the fifteenth day of February, 1896, and is recorded in book number 57, at...