Hicks v. Scofield
| Decision Date | 19 February 1894 |
| Citation | 25 S.W. 755,121 Mo. 381 |
| Parties | Hicks v. Scofield, Appellant. [*] |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. J. W. Henry, Judge.
Affirmed.
Scofield & Cheeseman for appellant.
(1) The petitions in both cases do not state facts sufficient to constitute a cause of action. Seibel v. Siemon, 52 Mo. 363; Smith v. Phelps, 63 Mo. 585. (2) The value of the improvements put upon the land subsequent to the deed of trust must be paid or tendered by plaintiffs in these cases to the party entitled thereto, as a condition precedent to any injunction action, and this fact must be alleged in the petitions. Siebel v. Siemon, 5 Mo.App. 303; S C., affirmed, 72 Mo. 526; Seibel v. Siemon, 52 Mo 363; Smith v. Phelps, 63 Mo. 585. (3) In the trial of the case of Hicks v. Scofield, no evidence was offered to prove that he (Hicks) had any title to the premises in dispute. (4) In the mechanic's lien suit of Ryus v Goodin et al., Charles R. Hicks (one plaintiff in these actions), with one Samuel R. Foster, were defendants therein, and service of the summons in that action was personally had upon them. Hicks was the beneficiary under a deed of trust upon these lots before any houses or improvements were put upon the same, and Foster was the trustee therein. Plaintiff (Ryus) in that action before proceeding to judgment dismissed as to them, Hicks and Foster, and as William S. Earl, the other plaintiff in these actions, stands in the shoes of Hicks, both of these plaintiffs had actual notice of the lien under which defendant claims title to these houses, and they must redeem from the same. Heim v. Vogel, 69 Mo. 529; Olmstead v. Tarsney, 69 Mo. 396; Farwell v. Murphy, 2 Wis. 533; Goodman v. White, 26 Conn. 317. (5) This right could only be asserted by applying to the equitable jurisdiction of the court, and can not be relied on in an action to enjoin defendant from removing the buildings. Heim v. Vogel, 69 Mo. 529. (6) The evidence of title upon which defendant predicated his defenses to these actions was competent, and the title to the houses should have been found by the court, for the defendant. R. S. 1889, secs. 6705, 6707; Lumber Co. v. Ballantine, 2 Mo. Legal News, 600; Investment Co. v. Hazeltine, 53 Mo.App. 309, 315; Seibel v. Siemon, 72 Mo. 526; Crandall v. Cooper, 62 Mo. 478; Schaeffer v. Lohman, 34 Mo. 68; Hausser v. Hoffman, 32 Mo. 334; Hall v. Mfg Co., 22 Mo.App. 40-41; Mfg. Co. v. Gapen, 22 Mo.App. 401. (7) The item of March 17, 1890, of $ 332, first charged in the Ryus mechanic's lien as a lump sum, is valid. Seaman v. Paddock, 51 Mo.App. 465; Deardorff v. Roy, 50 Mo.App. 70; Grace v. Nesbit, 109 Mo. 9; Hilliker v. Francisco, 65 Mo. 598; Miller v. Whilelaw, 28 Mo.App. 369; Davis v. Harris, 6 Ohio St. 476; Kern v. Pfaff, 44 Mo.App. 30-34; Burroughs v. White, 18 Mo.App. 229; Manley v. Downing, 15 Neb. 637; Pool v. Wedemeyer, 56 Tex. 287; Hayden v. Wufling, 19 Mo.App. 353. (8) Ryus, in the mechanic's lien account filed against this property, had a right to apply the credits on the account where he pleased. Waterman v. Younger, 49 Mo. 413; Beck v. Hass, 31 Mo.App. 180; Gantuer v. Kemper, 58 Mo. 567; (9) The dismissal of the Ryus mechanic's lien suit, as to Hicks and Foster, did not invalidate the lien. Lumber Co. v. Ballantine, 2 Mo. Legal News, 600; Investment Co. v. Hazeltine, 53 Mo.App. 309-315; Jones on Mortgages [4 Ed.], sec. 1425; Olmstead v. Tarsney, 69 Mo. 396, 399; Crandall v. Cooper, 62 Mo. 478; Heim v. Vogel, 69 Mo. 535; Seibel v. Siemon, 72 Mo. 526; Hauser v. Hauffman, 32 Mo. 334; Schaeffer v. Lohman, 34 Mo. 68; 2 Jones on Liens, sec. 1571, p. 438.
Kinley & Kinley for respondent.
(1) The petitions in these cases both stated good causes of action, showing that appellant was about to do irreparable injury to real estate. R. S. 1889, sec. 5510; McPike v. West, 71 Mo. 199; Musser v. Brink, 68 Mo. 250; S. C., 80 Mo. 350-357. (2) The lien and judgment offered in evidence by appellant, together with all proceedings thereunder constituted no defense, and it was properly so held by the court for the following reasons: First. Because Hicks and Foster, under whom Earl holds, and Hicks for himself, were not permitted to defend the suit brought by Ryus to enforce his mechanic's lien, though Ryus had made them parties to the suit and brought them into court. Coe v. Ritter, 86 Mo. 277-285; Crandall v. Cooper, 62 Mo. 478-480; Planing Mill v. Church, 54 Mo. 520; Fire Clay Works v. Ellison, 30 Mo.App. 67; Clark v. Brown, 25 Mo. 563; Hauser v. Hoffman, 34 Mo. 340; Jones v. Hartsock, 42 Iowa 147 and cases cited; Dunphy v. Riddle, 86 Ill. 22. Second. The item of $ 332 for mill work, etc., was a lumping charge and would not support a lien, and the account showed all the balance of the material paid for. Respondents, under the statutes, had the right to attack this lien wherever it conflicted with their interests. R. S. 1889, secs. 6709-6713; Rude v. Mitchell, 97 Mo. 365; Smith v. Haley, 41 Mo.App. 611. Third. The deeds of trust made on November 23, 1889, and recorded November 26, 1889, on the real estate and houses in question, could not be affected by improvements subsequently made by the mortgagors; this is especially so when the mortgagees were precluded from having their day in court. Hauessler v. Thomas, 4 Mo.App. 463-469; Taylor v. Railroad, U.S.C. Ct., 4 Central Law Journal, 536; Reed v. Lamberton, 53 Mo.App. 76; Dugan v. Scott, 37 Mo.App. 663; Hall v. Mfg. Co., 22 Mo.App. 33; Crandall v. Cooper, 62 Mo. 478; Coe v. Ritter, 86 Mo. 277. (3) Where a lien account contains one item upon which a lien can not be based, and other items that are legal, and payments are made that are credited on the account, these payments will be applied first to the items of the lien that are legal. Nelson v. Withrow, 14 Mo.App. 270; Jones on Mech. Liens [3 Ed.], 504. (4) The court did not hold that the dismissal in the Ryus suit as to Hicks and Foster invalidated the lien, but did hold that the lien was invalidated by the only unpaid item thereof, the lumping item, and that Hicks and Foster were not bound by the Ryus judgment, all of which was correct. Rude v. Mitchell, supra. (5) The judgment should have been against appellant by default for the reason that he filed no motion to dissolve the injunction. R. S. 1889, sec. 5505.
This is a suit to restrain the defendant from tearing down or removing certain houses, standing on land belonging to the plaintiff.
The gist of the controversy can be stated in a few lines, discarding many irrelevant particulars which appear in the record.
The dispute involves the title to the houses mentioned. The defendant claims them, and the right to remove them, under proceedings to enforce a mechanic's lien. The plaintiff claims them as purchaser under a deed of trust.
The common source of title is Mary Goodin, who in 1889 owned the land on which the houses now stand. In November, 1889, she and her husband executed a deed of trust, in usual form, conveying this land to Samuel Foster, as trustee, to secure payment of a bond for $ 4,150 to the present plaintiff. That deed was duly recorded, November 26, 1889. Under it, a sale, after default, occurred, at which plaintiff became the purchaser, by deed from the trustee, November 21, 1890.
Plaintiff is in possession of the land under this title.
Defendant's claim is based on a mechanic's lien (for several hundred dollars) duly filed, August 27, 1890, in which the earliest item is of date, March 17, 1890. The lien is founded on a contract between Mary Goodin and her husband, and the lienor, Mr. Ryus. The latter brought suit to enforce the lien, making Mr. and Mrs. Goodin parties defendant, and also, at first, Mr. Hicks and Mr. Foster (the trustee), as claiming to own some interest in the property. But before judgment that cause was dismissed as to Messrs. Hicks and Foster. The other defendants made default, and the then plaintiff took judgment, May 4, 1891, against the Goodins, for the amount of indebtedness, and of lien for that sum "against the real estate and buildings," with an order for special execution accordingly. Under process on that judgment the lienor purchased the land and houses, July 2, 1891, and received a sheriff's deed, in due course, to that effect.
Afterwards, the present defendant bought the interest of the lienor, and gave written notice to plaintiff that he (defendant), as the owner of the buildings on the land mentioned, intended within thirty days to proceed to remove them by virtue of the purchase at the sheriff's sale, etc.
At this juncture the plaintiff sought the interposition of a court of equity, and secured a temporary order restraining defendant from interfering with the buildings.
On final hearing, the injunction was made perpetual.
Defendant then appealed, after taking the ordinary steps for that purpose.
We should regard the case as too plain for discussion were it not for remarks that have fallen from some of our brethren of the state judiciary in reference to the bearing of the mechanics' lien law upon somewhat similar facts.
The defendant conceded at the trial that plaintiff had paramount right to the land itself; but he insisted that his (defendant's) claim to the buildings thereon had priority, mainly because of the terms of the following section, viz.:
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