Gorman v. Sagner

• Decision Date: 31 October 1855
• Citation: 22 Mo. 137
• Parties: GORMAN, Plaintiff in Error, v. SAGNER AND OTHERS, Defendants in Error.
• Court: Missouri Supreme Court

22 Mo. 137

GORMAN, Plaintiff in Error,

v.SAGNER AND OTHERS, Defendants in Error.

Supreme Court of Missouri.

October Term, 1855.

1. An acceptance, by one having a mechanic's lien upon a building, of a deed of trust upon the same, to secure the payment, at a future day, of promissory notes given for the debt which gave rise to the lien, amounts to a waiver of the lien.

Error to St. Louis Circuit Court.

Scire facias to enforce a mechanic's lien. Among other facts which it is unnecessary to state, it appeared upon the trial that the plaintiff, Gorman, had accepted from Sagner, for whom the work and labor that gave rise to the lien was done, and who was at that time owner of the building upon which the same was done, two promissory notes payable in ninety days and four months, and also a deed of trust upon said building to secure the payment of said notes. Billings, one of the defendants, claimed said building by purchase at sheriff's sale, under a judgment upon a mechanic's lien. On the trial, plaintiff offered to surrender the two notes of Sagner. The court ruled that plaintiff could not recover.

Krum & Harding and Gray, for plaintiff in error.

1. The execution of the notes and the deed of trust to plaintiff by Sagner did not extinguish plaintiff's lien. It was not an equitable but legal lien, expressly given by statute, and would not be merged by a mortgage, deed of trust, or judgment. Nothing but payment or an express release would discharge it. (14 J. R. 404; 2 Browne, 297; 14 S. & R. 32; 1 Hals. Ch. 485; 5 Watts, 118; 2 Miles, 214; 6 B. Mon. 67; 2 Wheat, 390.) 2. No injustice would be done to Billings by allowing plaintiff to recover; for plaintiff's lien was regularly filed in the Circuit Court, and suit was commenced on it, before Billings bought, and he bought therefore with full notice. He was bound to take notice of plaintiff's lien claim from the filing of it.

Knox & Kellogg, for respondent.

SCOTT, Judge, delivered the opinion of the court.

From the view we take of this case, it will not be necessary to determine the points of law raised on the trial; for if the plaintiff's lien was extinguished, it follows as a consequence that he can not recover.

The record raises the question whether the giving of notes, payable at a future day, and a deed of trust to secure their payment on the property on which the lien exists, is a waiver of the mechanic's lien for the debt secured by the notes and deed of trust. Did this question concern only the immediate parties to the deed, it would be a matter of little consequence how it was determined. But when the acts of individuals became the motive to the conduct of...