Holland v. McCarty

• Decision Date: 04 January 1887
• Citation: 24 Mo.App. 82
• Parties: C. W. HOLLAND ET AL., Respondents, v. PATRICK MCCARTY ET AL., Appellants.
• Court: Missouri Court of Appeals

24 Mo.App. 82

C. W. HOLLAND ET AL., Respondents,

v.PATRICK MCCARTY ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Jan. 4, 1887.

APPEAL from the St. Louis Circuit Court, SHEPARD BARCLAY, Judge.

Affirmed.

HITCHCOCK, MADILL & FINKELNBERG, for the appellants: The lien and the petitions were fatally defective in describing a tract of land one hundred and fifty acres in extent, and in claiming a lien and special judgment against the whole of said tract. Such a claim and description is too general and does not conform to the statute which requires the claimant to give “a true description of the property, or so near as to identify the same, upon which the lien is intended to apply.” Rev. Stat., sect. 3176; Engelman v. Graves, 47 Mo. 348; Williams v. Porter, 51 Mo. 441; Wright v. Beardsley, 69 Mo. 548; Ranson v. Sheenan, 78 Mo. 668; Bradish v. James, 83 Mo. 313. The court erred in excluding evidence of the fact that the one hundred and fifty acres was subdivided into blocks and lots, and in excluding evidence of the fact that the tract described has over one hundred buildings upon it, some of which belong to third persons. Weaver v. Robinett, 17 Mo.; Rev. Stat., sect. 3172; Perry v. Block, 1 Mo. 484.

EBER PEACOCK, for the respondents: In cities the limit is the lot of land upon which the building is situated, without regard to quantity. All that is required of the lien is “to give a true description of the property, or so near as to identify the same, upon which the lien is intended to apply.” Rev. Stat., sect. 3172; Fitzgerald v. Thomas, 61 Mo. 499; Phillips on Mechanics' Liens (2 Ed.) p. 328, see p. 200. The description required is not the definite and exact one suggested by the appellant, of metes and bounds. It is sufficient, if enough appears in the description to enable one familiar with the locality to identify the premises intended to be described with reasonable certainty, to the exclusion of others. Oster v. Rabeneau, 46 Mo. 595; De Witt v. Smith, 63 Mo. 263; McClintock v. Rush, 63 Pa. St. 203; Kennedy v. House & Horton, 41 Pa. St. 39; Galewood v. House, 65 Mo. 663; Bradish v. James, 83 Mo. 313; Phillips on Mechanic's Liens (2 Ed.) p. 340, see p. 201. The appellant contends that the court below erred in refusing to permit Mr. Charles Green, a witness, to testify to the effect that the property described in the lien was subdivided into lots and blocks. The objection to this testimony was that it was incompetent, the recorded plats, if any, being the best evidence; which objection the court sustained. Fitzgerald v. Thomas, 61 Mo. 499.

THOMPSON, J., delivered the opinion of the court.

This action is brought by the plaintiffs as sub-contractors to recover a judgment against the principal contractor for work and labor done and materials furnished in painting a building known as the grand stand, situated on the land of the St. Louis Agricultural and Mechanical Association, known as the fair grounds, in the city of St. Louis, and to enforce a mechanic's lien against the building and lands. The claim of lien describes the entire tract known as the fair grounds, by metes and bounds, and seeks to establish a mechanic's lien thereon. There was a trial before a jury and a verdict and judgment in favor of the plaintiffs, and against the defendant McCarty, for the sum of $1,733.95, and establishing a mechanic's lien against the following described property of the St. Louis Agricultural and Mechanical Association, in the city of St. Louis, Missouri, to-wit: “The grand stand at the race track in the fair grounds tract of the said defendant association, and the land which the said grand stand now covers, the said parcel of land which the said grand stand now covers being part and parcel of another tract of ground belonging to the said defendant association and described as follows:” (describing the fair grounds tract by metes and bounds). From this judgment the St. Louis Agricultural and Mechanical Association prosecutes this appeal.

At the trial the contested issue was, so far as it remains for consideration upon this appeal, whether the tract of ground known as the St. Louis fair grounds, against which the plaintiffs had filed their claim of lien, could be made the subject of a lien under the statute for the work done on the building known as the grand stand. The bill of exceptions recites that the plaintiffs introduced evidence tending to establish the facts in their petition, and that it also appeared that the ground described in the petition and lien embraced all the tract of land known in the aggregate as the St. Louis fair grounds, including the old fair grounds proper, as well as the new portion known as the race track, upon a portion of which latter the building in controversy is situated. It also appeared from the plaintiffs' testimony that the ground described in the petition embraced more than thirty acres in quantity. No evidence was introduced by the plaintiffs to identify the particular portion of the ground upon which the building stands, by metes and bounds, except that it is located in the southwestern part of the grounds described in the lien and petition, and is known as the grand stand on said grounds. The Agricultural and Mechanical Association introduced evidence tending to show that the grounds described in the petition embraced an area of one hundred and fifty acres, and that the building in controversy occupied an area of only four hundred feet in length and fifty feet in width, part of the ground described in the petition.

I. The bill of exceptions recites that “the defendant also offered to prove by its president, that upon the total area described in the lien and petition, there are situated over one hundred different buildings, some of which are not the property of this defendant; also by said president that the ground where the building in controversy is located is subdivided and platted into lots and blocks. The court, on the plaintiffs' objection, refused to permit the same to be shown in evidence; to which exclusion of evidence the defendant at the time excepted.”

This ruling raises one of the questions which is urged upon this appeal. We are unable to say that the court committed error in this ruling, in the form in which it is stated. If the land described in the lien had been subdivided and platted into lots and blocks, the recorded plats would be the best evidence of that fact; and, as the bill of exceptions does not show that evidence of this kind was tendered, the inference is that the offer was merely an offer to prove by parol a fact which was susceptible of being proved by the public records. This would furnish a good reason for excluding this much of the tender of evidence. The fact that the tract of ground may have contained more than one hundred different buildings, some of which were not the property of the Agricultural and Mechanical Association, would seem to be immaterial; since a sale to enforce a mechanic's lien would give to the purchaser no more than the Agricultural and Mechanical Association had, and would not affect the rights of any other person having an interest in the land or buildings thereon. The limitation of the amount of land which may be covered by a mechanic's lien to one acre, in the Revised Statutes, section 3172, clearly is not applicable to land in cities, towns, and villages, under the language of the statute itself. The statute, after prescribing the acre limit, recites, “or if such building, erection, or improvement be upon any lot of land in any town, city, or village, then such lien shall be upon such building, erection, or improvements, and the lot or land upon which the same are situated, to secure the payment of such work or labor done, or materials, fixtures, engines, boiler, or machinery furnished, as aforesaid.” While it seems quite obvious, as intimated by the supreme court in Oster v. Rabeneau (46 Mo. 598), upon the reading of the statute, that the one acre limit does not apply to cities, towns, and villages, yet we may waive the decision of this question in the present case, as the supreme court waived it in that case; and for the purposes of this case we may assume that the one acre limit does apply within the city of St. Louis.

II. Proceeding then upon this assumption, we find that...