Ford v. Dixon

• Decision Date: 05 May 1913
• Citation: 157 S.W. 99,171 Mo.App. 275
• Parties: EARL FORD, Respondent, v. MINNIE DIXON, JOHN KALLAUNER, and FELIX GAMBREL, Appellants
• Court: Kansas Court of Appeals

157 S.W. 99

171 Mo.App. 275

EARL FORD, Respondent, v. MINNIE DIXON, JOHN KALLAUNER, and FELIX GAMBREL, Appellants

Court of Appeals of Missouri, Kansas City

May 5, 1913

Appeal from Buchanan Circuit Court.--Hon. W. K. Amick, Judge.

Judgment reversed.

H. B Williams, Eugene Silverman and G. W. Groves for appellants.

One in possession of land, under a verbal or written contract of purchase, cannot subject to a mechanic's lien either the building or the land, to the prejudice of the legal owner even under a statute which contemplates a remedy, either against the building or the land. Dustin v. Crosby, 75 Me. 75; Poor v. Oakman, 104 Mass. 309; Hickox v. Greenwood, 94 Ill. 266; Wagar v. Briscoe, 38 Mich. 587; Bank v. Fellowes, 42 Conn. 36; Walker v. Burt, 57 Ga. 20; Dierks v. Walrod, 66 Iowa 354; Wilkins v. Litchfield, 69 Iowa 465.

B. J Casteel for respondent.

A person in the possession of property, under a contract of purchase, is such an owner or proprietor, under the mechanic's lien law, that a contract made with such person, by a mechanic or material man, to furnish materials and erect a building thereon, or repair a building, already thereon, will afford a sufficient foundation for a mechanic's lien against the building so built or repaired and whatever interest such person has in the land. Jodd v. Duncan, 9 Mo.App. 417; Lumber Co. v. Clark, 82 Mo.App. 225; 172 Mo. 588; Lumber Co. v. Harris, 131 Mo.App. 94.

OPINION

JOHNSON, J.

--Suit to enforce a mechanic's lien. Defendant Kallauner was the owner in fee of a lot in St. Joseph on which there was a two-story brick building which, during his ownership, had been used as a residence. On September 11, 1911, he entered into a written contract with defendant Minnie Dixon by the terms of which he sold her the property for $ 30,000, and agreed to deliver her a deed on payment in full of the purchase price. She paid $ 100 on the purchase price on signing the contract and agreed to pay the remainder in monthly installments. The contract provided that "in case of default in the payment of the above installments for ten days after any one of the same becomes due and payable as above provided (the vendee) shall forfeit this contract at the election of said Kallauner and all payments previously made hereunder shall be taken and considered as only rent for said premises."

Mrs. Dixon made no other payment but defaulted in the performance of the contract and on January 15, 1912, agreed in writing to the cancellation of the contract and surrendered possession of the premises to Kallauner who then sold and conveyed them to defendant Gambrel.

Mrs. Dixon was in possession of the premises under the installment contract from September 11, 1911, to January 15, 1912, and while in such possession made alterations and repairs in and upon the building for the purpose of turning it into a rooming house with a restaurant on the first floor. These changes cost about $ 900 and consisted in the main of painting, papering, removing some of the interior partitions, putting in new closets and bathrooms and laying some new flooring. The plumbing work amounting to $ 443.50 was done by plaintiff under an oral contract with Mrs. Dixon who, in dealing with him, assumed to be the owner of the property.

There is evidence to the effect that Kallauner knew of the work at the time it was being done but there is no proof that he authorized Mrs. Dixon to act as his agent in having the work done and the contract did not mention the subject of improvement or repairs. Mrs. Dixon paid plaintiff $ 173 on account of the work but failed to pay the remainder of the debt and the object of this suit is to establish and enforce a mechanic's lien against the building for the unpaid work and material furnished by plaintiff in the repair and alteration of the building.

A jury was waived and after hearing the evidence the court gave personal judgment against Mrs. Dixon in the sum due on the lien account and adjudged the demand a lien upon the building. Defendants appealed.

The action and the judgment do not attempt to subject to the lien any interest or estate in the land. Kallauner, the owner of the legal title, entered into no contractual relation with plaintiff either directly or indirectly. Mrs. Dixon was not his agent nor did his contract with her for the sale of the property authorize her to use his credit or the credit of his interest in the property as security for the work she had done on the premises. In instances where the owner of the fee enters into a contract of sale or lease which invests the vendee or lessee with the right to enter into the possession of the premises and compels him to erect a building thereon or make improvements for the enhancement of the freehold estate, the agency of the vendee or lessee to subject the freehold to mechanic's liens will be implied. [O'Leary v. Roe, 45 Mo.App. 567; Lumber Co. v. Churchill, 114 Mo.App. 578, 90 S.W. 405; Hardware Co. v. Churchill, 126 Mo.App. 462, 104 S.W. 476.]

The present case is barren of such features and the mere fact that Kallauner knew that his vendee was having the building altered and repaired cannot be construed as conferring authority upon her in law to bind his estate in the land which, as stated, was the legal title.

The position of plaintiff is that since Mrs. Dixon, when she had the work done, was in possession of the premises, under a valid and binding contract of purchase, she had an equitable estate in the land that constituted her an owner within the meaning of the statutes. It is argued that "a person in the possession of property, under a contract of purchase, is such an owner or proprietor under the mechanic's lien law, that a contract made with such person, by a mechanic or material man, to furnish materials and erect a building thereon, or repair a building, already thereon, will afford a sufficient foundation for a mechanic's lien against the building so built or repaired and whatever interest such person has in the land."

The statute provides (Sec. 8212, R. S. 1909): "Every mechanic or other person, who shall do or perform any work or labor upon . . . any building, erection or improvements upon the land, or for repairing the same under . . . any contract with the owner or proprietor thereof . . . shall have for his work or labor done . . . a lien upon such building, erection or improvements and upon the land belonging to such owner or proprietor," etc.

The substance of plaintiff's position is that on the hypothesis that Mrs. Dixon was the owner of an estate in the land which afforded a foundation for a mechanic's lien, her contract for the alteration and repair of the building bound her estate in the land and the entire estate in the building including that of Kallauner the holder of the legal title to both land...