Horton v. St. Louis, Kansas City & Northern Ry. Co.

• Decision Date: 31 October 1884
• Court: Missouri Supreme Court
• Parties: HORTON, Administratrix, v. THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY et al., Appellants.

84 Mo. 602

HORTON, Administratrix,

v.THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY et al., Appellants.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Clinton Circuit Court.--HON. G. W. DUNN, Judge.

REVERSED.

C. T. Garner & Son and W. H. Blodgett for appellants.

(1) The depot buildings were erected by the St. Louis & St. Joseph Railroad Company on the land of said company as part of its line of railroad, and were completed by said company with its road, were intended to be and are as permanent a fixture to the land as the road-bed and rails on its track, and hence, cannot be and are not personal property, and this action cannot be sustained. It is not shown, nor does it appear that these depot buildings were erected upon any agreement or arrangement that they were to be removed from the land under any circumstances or any contingency whatever, nor is it shown that in their erection they were considered or regarded as personal property. Washburn on Real Property (4 Ed.) 3; Rogers et al. v. Crow et al., 40 Mo. 93; The State Savings Bank v. Kercheval, 65 Mo. 682. (2) The description of the property sought to be covered by the lien is insufficient, and no lien created, no title passed thereunder. Williams v. Porter, 51 Mo. 441; Matlock v. Lane, 32 Mo. 263. Under our statute the building cannot be separated from the land in enforcing mechanic's lien. There can be no lien under which a title can be obtained in a proceeding to enforce a mechanic's lien independent of and separate from the land on which the buildings are situate. The North Missouri Railroad Company was not the contractor for the plastering of the depots, and the deceased, Horton, made a fatal mistake in instituting the lien proceedings against that road. Williams v. Porter, 51 Mo. 441; Lemley v. LaGrange, etc., 32 Mo. 262; Ranson v. Sheehan, 78 Mo. 668; Wright v. Beardsley, 69 Mo. 548; Fitzpatrick v. Thomas, 61 Mo. 512. The court erred in giving instructions for respondent. Said instructions did not present the law of the case and were not supported by the evidence. Belcher v. Shamburg, 18 Mo. 189; Houser v. Hoffman, 32 Mo. 134; Siebel v. Tiernion, 72 Mo. 527; Waters v. Stevenson, 13 Nev. 157; Sedgwick on Measure of Damages, 472, 488; Spencer v. Vance, 57 Mo. 430. If the proceedings to enforce a mechanic's lien appear on their face to be fatally defective in the description of the property to be charged with the lien, no one is bound to take any notice of such proceedings. Goepp v. Gartaser, 35 Pa. St. 130; Phillips on Liens, sec. 378. The contractor or mechanic cannot claim any greater estate or title in the premises than the person possesses under whom he claims. Bridwell v. Clark, 39 Mo. 170. The action of trover will not lie for the conversion of real property, or that which in law formed a part of the realty. Gibbs v. Esty, 15 Gray 587; London v. Platt, 31 Conn. 517; Wooden v. Pease, 17 N. H. 282. The depot buildings and land on which they were situated is a part of the railroad and were sold. It is against the general purposes of our statute, as well as the construction given therein by this court, to allow a railroad to be sold in detached parcels, under the mechanic's lien act, or otherwise. Schulenburg v. Memphis & Northwestern R. R. Co., 67 Mo. 442.

J. W. Shotwell and E. F. & R. E. Esteb for respondent.

(1) It is not seriously controverted on the part of appellants that in the months of September, October, and November, 1870, the depot buildings in controversy were plastered by the deceased, Horton, or that he enforced his mechanic's lien on the several buildings in controversy against the North Missouri Railroad Company, recovered judgments, had executions issued enforcing the lien upon the several depots, had them sold, became the purchaser, took the sheriff's deeds and had them duly recorded, all before the sale of the road under the deed of trust to the Farmers Loan and Trust Company of New York, to St. Anger Chase, through whom defendants claim; the evidence further discloses the fact that Horton died on the fourth day of April, 1873, leaving a wife and infant child to contend for their rights against rich and powerful corporations. The facts in evidence show that the North Missouri Railroad Company was in possession of and operating the St. Louis and St. Joseph Railroad under a written agreement for a lease, at the time that the deceased, Horton, plastered the buildings now in controversy. (2) Under this state of case, the court committed no error in giving the first instruction asked for by the plaintiff. 1 Revised Statutes, Mo., 188, sec. 1018; Raithel v. Dezetter, 43 Mo. 145; Reid v. Mullins, 43 Mo. 306; Lee v. Casey, 39 Mo. 383; Battel v. Crawford, 59 Mo. 215. (3) The same is true of the second and third intructions on the part of plaintiff. 1 Revised Statutes, 535, sec. 3180; Schaeffer v. Lohman et al., 34 Mo. 68; Hauser v. Hoffman, 32 Mo. 334; Miller et al. v. Faulk et al., 47 Mo. 262; Webbing v. Powers, 25 Mo. 599; Ashburn v. Ayres, 28 Mo. 75; Lowenberg v. Bernd, 47 Mo. 297; Walkenhorst v. Caste et al., 33 Mo. 401. Other persons claiming an interest in the property upon which the lien is enforced have the right only to enquire into the regularity of the proceedings enforcing the lien. (4) The same is true of plaintiff's fourth instruction. Kansas City Hotel Co. v. Sauer, 65 Mo. 279; Siebel v. Siemon, 52 Mo. 363; Matson v. Calhoun, 44 Mo. 368. The fifth instruction of plaintiff is the law. Hearne et al. v. Chillicothe and Brunswick R. R. Co. et al., 53 Mo. 324. (5) The sixth and seventh instructions of plaintiff correctly state the law. R. S., secs. 3174, 3178; Kansas City Hotel Co. v. Sauer, 65 Mo. 279; Sieble v. Siemon, 52 Mo. 363. (6) The court did not err in giving the eighth instruction for plaintiff. Battel v. Crawford, 59 Mo. 215. Raithel v. Dezetter and Reid v. Mullens, 43 Mo. 145 and 306; Sparks v. Purdy, 11 Mo. 219; Sieble v. Siemon, 52 Mo. 363; Smith v. Phelps, 62 Mo. 585; Kansas City Hotel Co. v. Sauer, 65 Mo. 279. (7) Plaintiff's ninth instruction is right, a suit in ejectment is not a bar to another action. Holmes v. City of Carondelet, 38 Mo. 551; Carter v. Scaggs et al., 38 Mo. 302; Graham v. City of Carondelet, 33 Mo. 262; Slevins, Trustee, v. Brown, 32 Mo. 176. (8) The court committed no error in giving plaintiff's tenth instruction. Riggins v. Missouri River, Ft. Scott & Gulf R. R. Co., 73 Mo. 598; Paige v. Fullerton Woollen Co., 27 Vt. 485; Miller v. McMains, 57 Ill. 126. (9) The court properly refused defendant's first instruction. If there is the slightest evidence, however remote, tending to establish plaintiffs claim, a demurrer to the evidence cannot be sustained. Routzong v. R. R., 45 Mo. 236; Rippy v. Friede, 26 Mo. 523; Deer v. Plaint, 42 Mo. 45. The other instructions given for plaintiff were properly given, and those given for the defendant were as favorable as the law warrants.

NORTON, J.

This suit was instituted by plaintiff in the circuit court of Clinton county, to recover damages for the wrongful conversion by defendants of certain depot buildings, situate on the St. Louis and St. Joseph Railroad, in Clinton and Buchanan counties. The petition alleges in substance, that the depot buildings were personal property and were owned by plaintiff's intestate, and that she is entitled to the possession thereof, and that defendants wrongfully converted the same to their own use. Issue was joined on the petition, and on the trial plaintiff obtained judgment, from which the defendants have appealed, and among other things assign for error, the action of the circuit court in admitting improper evidence, and in giving improper and refusing proper instructions.

It is insisted by defendants that the court erred in refusing to instruct the jury, that on the evidence and pleading, plaintiff was not entitled to recover. The evidence showed that in September, October, and November, 1870, E. C. Horton, plaintiff's intestate, plastered five depots on the line of the St. Louis and St. Joseph Railroad, and furnished materials with which the work was done; that within the time prescribed by law, he filed his lien and account against the North Missouri Railroad Company, with which company it is alleged he made the contract for doing the work; that he instituted proceedings in the circuit courts of Clinton and Buchanan counties, respectively, to enforce his lien against said buildings and the right of way on which they were situated; that judgments were obtained in 1871, to be levied on the respective depot buildings, and the right of way on which the same stands on the St. Louis and St. Joseph railroad. Executions issued on these judgments, and the depot buildings, and the right of way on which they stood, were sold by the sheriff on the twenty-seventh day of January, 1872, and the said Horton became the purchaser, and received a deed therefor. Horton died in April, 1873, and on the seventh of February, 1877, plaintiff was appointed administratrix of his estate and thereafter instituted this suit against the present defendants, alleging that the depots in question were personal property, and that they were wrongfully converted by defendants to their own use, to her damage, etc.

The deposition of White, offered in evidence and admitted over the objections of defendants, simply showed that in December, 1870, the St. Louis and St. Joseph...