Fitzpatrick v. Thomas
| Decision Date | 31 January 1876 |
| Citation | 61 Mo. 512 |
| Parties | DENNIS FITZPATRICK, Respondent, v. JOHN S. THOMAS, Appellant. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court.
Schulenburg, for Appellant.
Cline, Jamison & Day, for Respondent.
I. The plaintiff's lien attached at the time when the buildings were commenced by him, and no subsequent conveyance by the defendant could divest plaintiff of his lien. (Douglas vs. St. Louis Zinc Co., 56 Mo., 388.) And it could not avail the defendant to aver in his answer, that before the filing of the lien he had conveyed to others.
II. There is no pretence that the lots on which the houses were built were in any way distinct or separate, unless they were made so by virtue of the different houses upon them built by the plaintiff. And no good reason can be given why the lien should have been distributed or apportioned on the different houses which were built by one contract for the same contractor and owner, and on the same piece and parcel of land.
In Matlack vs. Love (32 Mo., 262) the lien described the property as “two three-story brick houses situated on the east side of Fifth street, between Franklin Avenue and Morgan Street.” The court held that as no boundaries were given that was not a sufficient description to disclose to the officer the property to be sold; but the court makes no comment on the fact of the lien being on “two three-story brick houses,” showing that the court did not consider the lien objectionable on that ground.
In Moran vs. Chase (52 N. Y., 346) it is held, that where, under the provisions of the mechanic's lien law of that State, a lien is filed for work done and materials furnished for a number of adjoining buildings all owned by the same person, as against the owner, they can all be treated as a single building. One single proceeding may be instituted to enforce the claim against all of them. In Landers vs. Lester (106 Mass., 531) though the point is not expressly decided, yet it is virtually conceded that if work should be done in erecting a block of houses under the same contract, a lien could be maintained on the whole block. In Chadbourne vs. Williams (71 N. C., 444) it is held that where work is done under a single contract, the lien may attach to the whole property, even though the lots should be separated by a street.
In the case in 3 Oregon, 527, the contract was wholly with a person who held an incumbrance on the property, he being the only one who filed an answer, and the decision shows that it was solely in reference to the rights of that party that the decision was made. It further appears that the work, etc., in that case (p. 528) was done at different times and on different buildings. The Oregon statute also uses the word “building” in the singular number throughout, and the court (p. 532) seems to lay stress on the words “such building.”
Our statute uses the word “buildings” in different sections, showing that it was not contemplated that the lien should be confined to a single building, where more should be erected under one contract, on the same parcel of ground for the owner.
The case in 17 Ill., 300, cited by the defendant simply decides that where the work was done on different premises the mechanic could not file a lien on one of them for the aggregate amount of work done on both, which may be conceded to be good law, but does not affect the present case.
The case in 5 Allen, 406, is decided expressly on the ground that before the fence was built, and hence before any lien accrued, the houses on which the lien was claimed, belonged to different owners.
III. This case is not identified with that of Fitzgerald vs. Thomas, 61 Mo. 499.
1. In the present case the...
To continue reading
Request your trial
-
Progress Press Brick & Machine Co. v. Gratiot Brick & Quarry Co.
... ... one entire manufacturing plant with every department in it as ... a necessary adjunct or artery to give life to the whole ... Thomas v. Davis, 76 Mo. 72; N. Y. Security Co ... v. Saratoga Co., 34 N.Y.S. 890; Rogers v. Crow, ... 40 Mo. 95; Chapman v. Ins. Co., 4 Ill.App ... 452; Graves v. Pierce, 53 Mo. 423; Hall v. St ... Louis Mfg. Co., 22 Mo.App. 33; Simmons v ... Carrier, 60 Mo. 581; Fitzpatrick v. Thomas, 61 ... Mo. 512; Schulenberg v. Prairie Home Institute, 65 ... Mo. 295; Schulenberg v. Hawley, 6 Mo.App. 34; ... Current River ... ...
-
Hooven, Owens & Rentschler Co. v. John Featherstone's Sons
...439. This policy has been adopted by the legislature of the state of Missouri. After the supreme court has rendered its decision in Fitzpatrick v. Thomas, that legislature expressly provided that, whenever case of that character arose in that state, the lien of the claimant should be sustai......
-
Horton v. St. Louis, Kansas City & Northern Ry. Co.
...v. Porter, 51 Mo. 441; Lemley v. LaGrange, etc., 32 Mo. 262; Ranson v. Sheehan, 78 Mo. 668; Wright v. Beardsley, 69 Mo. 548; Fitzpatrick v. Thomas, 61 Mo. 512. The court erred in giving instructions for respondent. Said instructions did not present the law of the case and were not supported......
-
The State v. Gregory
...Co. v. Evans, 97 Mo. 47, 10 S.W. 868; Schulenberg v. Home Institute, 65 Mo. 295; Simmons, Garth & Co. v. Carrier, 60 Mo. 581; Fitzpatrick v. Thomas, 61 Mo. 512.] the Legislature came to consider, then, that the materialman, relying upon the mechanic's lien law, would furnish his material to......