Crandall v. Cooper

• Citation: 62 Mo. 478
• Parties: WARREN D. CRANDALL, Respondent, v. J. S. COOPER and A. C. CLARK, Appellants.
• Decision Date: 31 May 1876
• Court: United States State Supreme Court of Missouri

62 Mo. 478

WARREN D. CRANDALL, Respondent,

v.J. S. COOPER and A. C. CLARK, Appellants.

Supreme Court of Missouri.

May Term, 1876.

Appeal from Linn County Common Pleas.

S. P. Huston, for Appellants.

I. The appellant was not a party to the suit to enforce the mechanic's lien, and therefore was not bound by it. (Wagn. Stat., 910, § 9.)

II. The trust deed under which appellant claimed, was the prior lien. (Wagn. Stat., 908, § 2; Houck Liens, 1-144, ch. 6.)

III. The lien of the mechanic as against the appellant only attached to the erection, the fence, and he could remove it from the premises. (Wagn. Stat., 908, § 3.)

George W. Easley, for Respondent.

If the plaintiff was not entitled to recover the possession of the property, he was entitled (Wagn. Stat., 560, § 14), to payment for the rents and profits.

WAGNER, Judge, delivered the opinion of the court.

This was an action of ejectment to recover possession of a lot of ground in the town of Brookfield. The answer admitted the possession, but denies all the material allegations of the petition.

The plaintiff claimed under a sheriff's deed, dated the 6th day of August, 1873, and which recited a judgment for $28.09 recovered by one M. L. Delano on the 11th day of August, 1871, against J. S. Cooper and Fletcher and wife, the latter being Cooper's vendees. The judgment and execution were special, reciting a mechanic's lien, and ordering its enforcement against the lot in dispute.

Plaintiff then read in evidence the original papers in the case of Delano against Cooper and Fletcher and wife, which showed that the work, for which the lien was claimed and enforced, was commenced on the 10th day of July, 1870, and was done in putting up a fence along the street front of the lot. The rents and profits were then shown, and plaintiff rested.

Defendants on their part, read in evidence a deed of trust executed by J. S. Cooper and wife, on the 20th day of April, 1870, which was recorded on the next succeeding day, conveying the premises sued for to plaintiff, W. D. Crandall, as trustee, to secure the payment of a note to defendant, Clark, for the sum of eleven hundred and eighty-eight dollars. They also read in evidence a deed under the deed of trust made by Crandall, the plaintiff, as trustee, reciting the non-payment of the note, the sale and purchase of the property by the defendant, Clark, and the conveyance of the same to him This was all the evidence, and the court found for the plaintiff.

It will be seen by the above recited facts, that Clark's lien was prior to the commencement of the work and to the filing of the mechanic's lien and the proceedings thereon. Clark was not a party to the suit, but his own trustee, the plaintiff, purchased at the sale, and now seeks to recover the premises for himself, the record showing that he bid two dollars and fifty cents as the consideration.

By the second section of the mechanic's...