Center Creek Mining Company v. Coyne

• Decision Date: 06 May 1912
• Citation: Center Creek Mining Company v. Coyne, 147 S.W. 148, 164 Mo.App. 492 (Mo. App. 1912)
• Parties: CENTER CREEK MINING COMPANY, Respondent, v. T. F. COYNE et al., Appellants
• Court: Missouri Court of Appeals

147 S.W. 148

164 Mo.App. 492

CENTER CREEK MINING COMPANY, Respondent, v. T. F. COYNE et al., Appellants

Court of Appeals of Missouri, Springfield

May 6, 1912

Appeal from Jasper Circuit Court.--Hon. David E. Blair, Judge.

AFFIRMED.

Judgment affirmed.

Frank L. Forlow and H. S. Miller for appellants.

(1) The rule is that where non-lienable items are included in the mechanic's lien account filed in the office of the clerk of the circuit court that if they can be easily segregated from the lienable items and if the lienor did not know at the time he filed the account that there was included in it the non-lienable items, the inclusion of such item will not vitiate the lien. Kittrell v. Hopkins, 114 Mo.App 431. (2) Also it is held in the case of Ulrich v Osborne, 106 Mo.App. 492, that where they are included in the lien accounts a few small items which did not go into the building, they will not in the absence of bad faith vitiate the lien especially where they are separable with the amounts from other items. (3) The acknowledgment to the chattel mortgage is defective and the record of an imperfectly acknowledged chattel mortgage imparts no notice in this suit. Selking v. Hebel, 1 Mo.App. 340; Pullis v. Pullis, 157 Mo. 565. (4) It is not necessary to make the Center Creek Mining Company a party to the mechanic's lien suit by the appellant herein against the Good Shepherd Mining Company. The question of the ownership of the property does not arise in a mechanic's lien suit nor in proceedings to enforce the same. If in point of fact the Good Shepherd Mining Company had no interest in the property the purchaser at the sheriff's sale under the special execution would get no title but whether he gets title or not would be a matter to be settled in a future proceeding. Chambers v. Benoist, 25 Mo.App. 523; Cole v. Barron, 8 Mo.App. 509. (5) The right of the appellant to its lien could not be extinguished except by release or payment and the release will not be binding or the lien lost if given on conditions and the conditions not complied with. Rockel on Mechanic's Liens, sec. 189; Albrecht v. Lumber Co., 126 Ind. 318; Katzenbach v. Holt, 43 N.J.Eq. 536. (6) The notes taken by the appellant under the circumstances as shown by the record in this case would not release the lien and the right to enforce it. Lumber Co. v. Christophel, 62 Mo.App. 98; Brass Co. v. Boyce, 74 Mo.App. 342. (7) This record is absolutely free from any fraud whatever in the procuring of the mechanic's lien judgment. That the proceeding in this case is a collateral attack on the mechanic's lien judgment there can be no question. Railroad v Warden, 73 Mo.App. 117; Murphy v. De France, 150 Mo. 53; Davis v. Wade, 58 Mo.App. 641; Wyman v. Hardwick, 52 Mo.App. 621; Bracken v. Milner, 99 Mo.App. 194; Le Mesnager v. Variel, 144 Cal. 463, 77 P. 988, 103 Am. St. Rep. 91; Davis v. Osborne, 156 Ind. 86, 59 N.E. 279; Peters v. League, 13 Md. 58, 71 Am. Dec. 622; Crist v. Cosby, 11 Okla. 635, 69 P. 885; Wood v. Elam, 4 B. H. C. 431.

Bates & Stewart, Norman A. Cox and Hugh Dabbs for respondent.

(1) An acknowledgment would be unnecessary in this case because appellants had actual knowledge of the existence of respondent's mortgage and received $ 1500 out of the loan secured thereby. This mortgage is signed by the president of the Good Shepherd Mining Co., and attested by the seal of the corporation. This is sufficient. Degnan v. Thoroughman, 88 Mo.App. 62; Roth v. Wire Co., 94 Mo.App. 236; R. S. 1909, sec. 2811; Bank v. Frame, 112 Mo. 509. (2) Appellants having agreed with respondent and the Good Shepherd Mining Company to accept the $ 1500 and the notes in full satisfaction of its claim, for the purpose of inducing respondent to make the loan, and having received $ 1500 of respondent's money, are not estopped from enforcing a mechanic's lien against the property. Brick v. Sadring, 68 Mo.App. 17; Lumber Co. v. Park Assn., 64 Mo.App. 381; Bank v. Frame, 112 Mo. 513; Spence v. Renfro, 179 Mo. 421. (3) Under the mortgage and the court record, as shown by the evidence the mechanic's lien judgment obtained by appellants showed a superior lien to respondent's mortgage. Respondent not having been a party to the suit which resulted in the mechanic's lien judgment and that judgment being a fraud on its rights had a right to attack it in this proceeding. R. S. 1909, secs. 8219, 8221; Russell v. Grant, 122 Mo. 180; Fitzpatrick v. Stevens, 114 Mo.App. 502; Bank v. Davison, 40 Mo.App. 425; Sanderson v. Voelker, 51 Mo.App. 333; Wilhite v. Ferry, 66 Mo.App. 459; Clothing Co. v. Steadman, 120 Mo.App. 525. (4) While the injunction in this case is auxilliary to the suit to concel and set aside the judgment, respondent would be entitled under section 2534, Revised Statutes 1909, to maintain an original injunction against the judgment in this case as the judgment is a lien and cloud upon the title to the mill and improvements and one acre of respondent's land. R. S. 1909, sec. 2534; Russell v. Grant, 122 Mo. 175; Bassett v. Henry, 34 Mo.App. 556; Stewart v. Caldwell, 54 Mo. 539; Hanson v. Neil, 215 Mo. 283. (5) Respondent is entitled to maintain this suit in equity on any one of the following grounds, fraud, equitable estoppel, cancellation and cloud on title. Williams v. Lane, 66 Mo.App. 68; Daugherty v. Rothbaum, 156 Mo.App. 219; Creamer v. Bivert, 214 Mo. 479. (6) The acceptance of the $ 1500 out of respondent's loan and the two notes of $ 500 each was all one transaction. Under the law appellants will not be permitted to accept the benefits of the transaction and repudiate the part which is not beneficial. Grooms v. Mullet, 133 Mo.App. 481; Austin v. Loring, 63 Mo. 22; Nelson v. Hirsh, 102 Mo.App. 513.

OPINION

NIXON, P. J.

This was an action in equity instituted by the Center Creek Mining Company to set aside and cancel a mechanic's lien judgment obtained by the defendants, a copartnership, against the Good Shepherd Mining Company, a corporation, and restrain the collection of the same, the plaintiff claiming that said judgment was invalid and that it declared a lien and cast a cloud upon plaintiff's title. A temporary injunction was issued restraining the collection of the judgment and on final hearing was made perpetual. Defendants have appealed.

The evidence in the case tended to support the allegations of the petition which is substantially as follows (formal parts omitted):

"Plaintiff for its amended petition and cause of action states that at all times hereinafter mentioned, it was, and is now, a corporation, organized and doing business under the laws of the State of Missouri; that during said period defendants, T F. Coyne, Ed. Foster and W. W. Davis, were, and still are, copartners engaged in the retail lumber business in Webb City, Missouri, under the name and style of the Coyne Lumber Company; that the hereinafter mentioned Good Shepherd Mining Company was also during said period and is now a corporation organized and existing under the laws of the State of Missouri; that the defendant Arch McDonald has been for more than one year next preceding the date of filing this petition the duly elected, qualified and acting sheriff of Jasper county, Missouri.

"Plaintiff states that on or about the fifteenth day of January, 1908, the said Good Shepherd Mining Company entered into a contract with the plaintiff whereby it leased to the said Good Shepherd Mining Company for a period of years for mining purposes all of lots numbered 84, 85, 86, 87, 88, 97, 98, 99, 100, and fractional lots numbered 101, 102, 103 and 104, respectively of the Center Creek Mining Company's land, all located in the southwest quarter of the northwest quarter of section seventeen (17), township twenty-eight (28), range thirty-two (32), Jasper county, Missouri; that said contract among other things provided that said Good Shepherd Mining Company would own and might remove therefrom, all fixtures and improvements placed by it on the said lots, at the expiration or forfeiture of said lease; that under the terms and provisions of said lease, said Good Shepherd Mining Company constructed a mining concentrating plant, including main buildings, derrick, hoppers, machinery, tramways, office buildings, etc., on one or more of the said lots; plaintiff further states that after the completion of the said mining plant and on or about the first day of August, 1908, the Good Shepherd Mining Company could not proceed with its operations for the want of funds; that in the building and construction of said mining plant, building, machinery and improvements, it had incurred a large amount of indebtedness, its creditors being the defendant Coyne Lumber Company, a partnership composed as aforesaid; the Webb City Foundry & Machinery Company, Manley & Landreth of Joplin, Missouri, and Putman and Bryant of Webb City, Missouri. That at said times the claims of said creditors were for materials used for the improvements on said lease, the said creditors being entitled under the law to enforce their claims under the mechanics' lien laws for said improvements.

"Plaintiff states that on the tenth day of August, 1908, the Good Shepherd Mining Company applied to it for a loan with which to discharge its then existing indebtedness to the aforesaid creditors and to create a fund with which to continue mining operations. Plaintiff states that through its secretary and general manager it agreed with the Good Shepherd Mining Company to make a loan provided all lienable claims and debts existing and owing by said company at the time be paid off and discharged so that plaintiff's loan could be secured by a first mortgage on said mill and improvements, concentrating plant and machinery aforesaid; that thereupon the said Good Shepherd Mining...