Hauser v. Hoffman

• Decision Date: 31 March 1862
• Citation: 32 Mo. 334
• Parties: JACOB HAUSER, Respondent, v. CHARLES H. HOFFMAN, Appellant.
• Court: Missouri Supreme Court

32 Mo. 334

JACOB HAUSER, Respondent,

v.CHARLES H. HOFFMAN, Appellant.

Supreme Court of Missouri.

March Term, 1862.

Appeal from St. Louis Land Court.

The facts are stated in the opinion. The following instructions were given and refused.

Asked by plaintiff and refused:

1. If the court finds from the evidence that the suit instituted by Christian Faller to enforce his lien, the record of which has been given in evidence, was begun more than ninety days after the filing of said lien, then the judgment and execution in favor of said Faller, and sheriff's deed to the defendant, read in evidence by him, constitute no bar to the plaintiff's right to recover in this action.

2. If the court find from the evidence that the lots of land described in the plaintiff's petition are a part of the Martin Coons' tract, and are within the outboundary lines of survey 2499, read in evidence; if the judgments, execution deeds and writings, read in evidence by the plaintiffs, are genuine; if the defendant, Charles Hoffman, was in possession of said lots when this suit was begun,--then the plaintiff is entitled to recover in this action against said Hoffman.

3. The return of the sheriff upon the execution in the case of Christian Faller v. August William Weber, read in evidence, does not show that said Weber had not sufficient property, other than that described in said execution, to satisfy the same; nor is there any evidence in this case tending to show that said Weber had not sufficient property to satisfy said execution, other than that described therein; and unless the court is satisfied from the evidence that said Weber had not property sufficient to satisfy said execution, other than that described therein, while the said execution was in the hands of the sheriff, and before the sale thereunder, then the said sale of the lots in question, and sheriff's deed read in evidence by defendant, constitute no bar to plaintiff's right to recover in this action.

Given for defendant:

If Christian Faller performed work and labor, and furnished materials in the erection and construction of the building and fencing on the lot described in the plaintiff's petition, at the request of August William Weber, commencing February 18th, 1856, and ending October 15th, 1856; that said Weber was the owner, and in possession of said premises; that the building was commenced in February, 1856; that said Faller filed in the clerk's office of said Land Court a lien against the said premises for said work and materials, on the 18th of November, 1856; that on the 14th of July, 1857, said Faller commenced suit in said court to enforce said lien against said Weber and said premises; that judgment was rendered in said suit against said Weber and said premises; that execution was issued upon the said judgment; that the sheriff of St. Louis county advertised and sold said premises, in pursuance of said execution, to said Charles Hoffman, and executed to him the deed read in evidence by the defendant,--then the title of said Hoffman is a better title than the said plaintiff acquired under deed of trust given by said Weber subsequent to the commencement of said building upon said lot, and the plaintiff is not entitled to recover.

Krum & Harding, for appellant.

At the time Faller began to furnish the work and materials for the building (February, 1856), the act of February 24, 1843, was in force, and continued in force until the passage of the act of December 11, 1855. (R. C. 1855, p. 1071, § 25.) This section repeals the act of 1843, but saves the rights of parties acquired under it. (Acts 1843, p. 83; R. C. 1845, p. 699, § 22; R. C. 1855, p. 1027, § 23, and p. 1071, § 25.)

The provisions of the act of 1843 were re-enacted, substantially, February 14, 1857, which required suits to be begun within ninety days, and took effect from its passage, and repealed all acts inconsistent therewith. (Acts 1857, p. 668.)

I. The appellant was not a party to the suit of Faller v. Weber, nor had he notice of the lien; therefore, the affidavit of Faller, filed in the Land Court, was erroneously admitted in evidence.

The burden rested upon Hoffman to prove the lien upon the property. The account and affidavit were offered, not to prove the filing of the lien, but to prove the lien itself.

II. The suit of Faller to enforce his lien was not begun within the time prescribed by the statute.

The act of February 14, 1857, repealed the act of 1855, and required suits to be commenced within ninety days. It went into effect from its passage; therefore Faller had ninety days from the date of the passage of the act (Feb. 14, '57) to commence his suit to enforce his lien.

The mode and time of suing belong to the remedy, and the act of 1857 does not take away, abridge, or in any way affect the rights of Faller. (Lee v. Chambers, 13 Mo. 238; Clark v. Brown, 25 Mo. 550; Doelner v. Rogers, 16 Mo. 340.)

III. The eighteenth section of the act of 1855, and the thirteenth section of the act of 1857, are to the same effect--that the judgment for the plaintiff shall be against the debtor as in ordinary cases; with the addition, that if no sufficient property of the debtor can be found to satisfy such judgment and costs, then the residue shall be levied, etc. But the judgment does not conform to the statute.

The return upon the execution does not show how the execution was satisfied-- whether by voluntary payment, or by levy upon personal property.

Hauser stands in a position which gives him the right to make every objection to the regularity of the proceedings.

IV. The plaintiff showed a legal title to the premises better than the title of defendant, and the second instruction asked by plaintiff should have been given.Lackland, Cline & Jameson, for respondent.

I. The record and proceedings of the lien and suit of Faller v. Weber were properly admitted in evidence. (R. C. 1855, p. 1067, § 8; 19 Mo. 334.)

II. The mechanic's lien took preference over all claims accruing after the commencement of the building. (R. C. 1855, p. 1067, § 8; Dubois v. Wilson, 21 Mo. 213.)

The mechanic was not bound to file his lien against one who was not owner when the building was commenced. (Jones v. Shawden, 4 Watts & S. 257.)

III. The mechanic had nine months, after filing his lien, to bring suit. (R. C. 1855, p. 1070, § 20.) The local act of St. Louis county, of February 24, 1843, was repealed by 25th section of R. C. 1855, p. 1071.

IV. The plaintiff's third instruction was rightly refused. It did...