Goodner v. Mosher-Roe Abstract & Guaranty Company

• Decision Date: 12 April 1926
• Docket Number: 25509
• Parties: E. OLIVE GOODNER, Appellant, v. MOSHER-ROE ABSTRACT & GUARANTY COMPANY
• Court: Missouri Supreme Court

282 S.W. 698

314 Mo. 151

E. OLIVE GOODNER, Appellant, v. MOSHER-ROE ABSTRACT & GUARANTY COMPANY

No. 25509

Supreme Court of Missouri

April 12, 1926

Appeal from Jackson Circuit Court; Hon. Thomas B. Buckner Judge.

Affirmed.

Battle McCardle for appellant.

(1) The petition did state a cause of action, Section 18 of the Act of February 1, 1871, providing that mechanic's liens affecting real estate situated in Kaw and Westport Townships in Jackson County should be filed at Independence, is unconstitutional in that it is in violation of Section 32 Article 4, of the Constitution of 1865, which provides that no law enacted by the General Assembly shall relate to more than one subject, which shall be expressed in the title. Sec 18, Laws 1871, p. 30; Witzman v. Southern Ry. Co., 131 Mo. 612; St. Louis v. Wortman, 213 Mo. 131; St. Louis v. Wetzel, 130 Mo. 616; State v. Mullinix, 257 S.W. 121; State v. Crites, 277 Mo. 194; State v. Sloan, 258 Mo. 305; State v. Rawlings, 232 Mo. 544; State v. Gordon, 233 Mo. 383; Woodward Hardware Co. v. Fisher, 269 Mo. 271; State v. Fulks, 207 Mo. 26; State v. Coffee & Tea Co., 171 Mo. 634; State v. Borden, 164 Mo. 221; Booth v. Scott, 276 Mo. 1; State ex rel. v. Hackman, 292 Mo. 27. (2) Whether the lien was filed legally or not, if respondent certified that there were no liens in the office of the clerk of the circuit court, and appellant relying on said certificate bought real estate, and there was a lien on file in the clerk's office, and thereby appellant sustained damage, the respondent is liable. Gilman v. Hovey, 26 Mo. 280; Dodd v. Williams, 3 Mo.App. 278; Rankin v. Schaeffer, 4 Mo.App. 108; Schade v. Gehner, 13 Mo. 252; Ham v. Hill, 29 Mo. 276; Rousy v. Lynch, 61 Mo. 560; Kenthan v. Trust Co., 101 Mo.App. 11.

McVey & Freet for respondent.

(1) The defendant discharged its full contract obligation to the plaintiff when it certified that there were no mechanic's liens of record in the office of the Circuit Clerk of Jackson County, affecting the real estate described in said abstract, as no such lien had been filed in Kansas City in Kaw Township, as provided by Section 18 of the Act of 1871. Keuthan v. Trust Co., 101 Mo.App. 1; Dodd v. Williams, 3 Mo.App. 278. (2) The title of the Act of 1871 fully complies with Section 32, Article 4, Constitution of 1865. Burge v. Railroad, 244 Mo. 76; State v. Mullinix, 301 Mo. 385; State v. Thomas, 301 Mo. 603; Forgrave v. Buchanan County, 282 Mo. 599; Rauch v. Himmelberger, 305 Mo. 70; Coffey v. Carthage, 200 Mo. 616.

Ragland, P. J. All concur; Graves, J., in separate opinion.

OPINION

RAGLAND

This is a suit against an abstracter bottomed on defendant's failure to show in an abstract of title furnished by it the previous filing of an alleged mechanic's lien.

The petition alleged that defendant was engaged at Kansas City Missouri, in the business of examining titles to real estate as disclosed by the public records and of making and furnishing written abstracts showing the state of such titles; that on the 9th day of April, 1921, defendant made and delivered to plaintiff, for a consideration paid by her, an abstract of the title to certain real estate situated in Kansas City (in Kaw Township) to which defendant attached a certificate by which it certified that there were no mechanic's liens filed remaining unsatisfied of record in the office of Clerk of the Circuit Court of Jackson County, Missouri; that on the strength of the showing as to the title made by such abstract and certificate plaintiff bought said real estate; that said certificate was false in that there was then on file in the office of Clerk of the Circuit Court of Jackson County, at Independence, Missouri, a mechanic's lien purporting to be a charge against said real estate in the sum of $ 794.29; and that "by reason of the fact that defendant did furnish her a certificate that was false she was induced to buy the real estate above against which said mechanic's lien and suit was a charge, and thereafter in order to prevent foreclosure of said lien and sale of above property thereunder she was obliged to and did employ a lawyer to defend said suit in her behalf; that by means of his efforts said foreclosure was prevented and the real estate above was freed from said lien and suit, but that in and about the defense of said suit, and in the trial of the same in the Circuit Court of Jackson County, Missouri, at Independence, she was compelled to incur an indebtedness to said lawyer for fees in the sum of $ 300." It was further alleged that plaintiff, in order to complete the improvements on the real estate she had purchased, found it necessary to obtain a loan thereon, and because of the pendency of the lien claim she was compelled to first take a temporary loan until it was disposed of, and thereafter to re-finance the transaction, whereby she was caused to expend in the way of extra commissions and interest the sum of $ 750. Judgment for $ 1050 was prayed.

The answer was a general denial.

When the cause came on for trial defendant objected to the introduction of any evidence on the ground that the petition did not state a cause of action. The objection was sustained. The facts being such that the petition could not be amended to meet the objection, plaintiff suffered judgment to go against her. From such judgment she prosecutes this appeal.

The circuit court's ruling was based on Section 18 of an act passed in 1871, entitled, "An Act to establish the Twenty-fourth Judicial Circuit, and to provide for the election of a Judge and Circuit Attorney therefor." The section in question, which has been continuously in force since the passage of the act, is as follows:

"All mechanic's liens upon real estate situate in Kaw and Westport Townships in said Jackson County, shall be filed in the office of the clerk of the circuit court at Kansas City, and suits for the enforcement thereof shall be brought in the circuit court at Kansas City." [Laws 1871, p. 30.]

"A mechanic's lien is purely a creature of statute. It does not take tangible form as an encumbrance against real estate until set forth in a document, verified and filed, in conformity with statutory provisions. In view of the statute just quoted, a lien claim filed in the office of the clerk of the circuit court at Independence, purporting to be a charge against real estate in Kaw Township, is a nullity -- a mere scrap of paper. It gives no more notice of the existence of a mechanic's lien on real estate in Kaw Township than if it had been filed in an adjoining county. Defendant, in making an abstract of the title to real estate in Kaw Township, was under no duty as an abstracter to search the records of the circuit clerk's office at Independence for evidence of mechanic's liens affecting such real estate, for the simple reason that under the statute none could be there. It follows that defendant's certificate to the effect that "there were no mechanic's liens filed remaining unsatisfied of record in the office of the Clerk of the Circuit Court of Jackson County, Missouri"...