Fitzgerald v. Thomas

• Decision Date: 31 January 1876
• Citation: 61 Mo. 499
• Parties: JOHN FITZGERALD, Respondent, v. JOHN S. THOMAS, et al., Appellants.
• Court: Missouri Supreme Court

61 Mo. 499

JOHN FITZGERALD, Respondent,

v.JOHN S. THOMAS, et al., Appellants.

Supreme Court of Missouri.

January Term, 1876.

Appeal from St. Louis Circuit Court.

Peacock & Schulenburg, for Appellants.

I. The statement filed by plaintiff and claimed to be a lien constituted no mechanic's lien upon the premises in question, because they are four distinct and separate houses divided from each other by fences, and erected upon separate lots of ground. (Dallas Lumber & Manf. Co. vs. Was. W. Manf. Co., 5 Oreg., 527; Steigleman vs. McBride, 17 Ill., 300; Rathburn vs. Hayford, 5 Allen, 406.)

John G. Chandler, for Respondent.

I. The lien was properly filed against the four houses, and the land upon which they stood, because 1st, the work was all done under one contract, and not on four separate contracts; 2d, no conveyance made by Thomas subsequent to the attaching of plaintiff's lien, could divest him of his right to look to the entire property as his security for his work; 3d, the houses all stood on one parcel of ground.

HOUGH, Judge, delivered the opinion of the court.

This was a suit to enforce a mechanic's lien. The plaintiff had judgment below, which was affirmed at general term. The record shows that on the first day of September, 1871, the defendant, Thomas, was the owner of four contiguous lots in block 2, of Peter Lindell's first addition to the city of St. Louis, numbered 29, 30, 31 and 32, having an aggregate front on Pine street, of one hundred and fifteen feet, and a depth of one hundred and twenty-eight feet and six inches. It was alleged in the petition that “upon said four lots above described, stood four houses of brick and stone, then in process of construction,” and it appears from the testimony of the plaintiff that these houses were not united in a row or block, but were separate from each other, though there were no fences between them. Under a contract made with the defendant, Thomas, on said first day of September, the plaintiff performed the work of plastering these houses and furnished the necessary materials therefor. It does not appear when the work was begun on any of the buildings, but the entire work is stated to have been completed on the 18th day of June, 1872. On the 27th day of November, 1872, the plaintiff filed his lien against the four lots, as one entire parcel of land, for the aggregate value of all the work done and materials furnished for the four houses, and to enforce that lien, the present suit was instituted. On the 19th day of December, 1871, Thomas conveyed a portion of said property to the defendant, Block. At various dates between and including the 29th day of June, 1872, and November 1st, 1872, he executed other conveyances for different portions of said property to the several remaining defendants. The defendants, as owners and incumbrancers of the lots under those conveyances, resist the plaintiff's suit, on the ground that his claim filed as a lien has no validity as such. They contend that a lien should have been filed against each house and lot on which it is situated, for the work and labor done and materials furnished for that house.

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