Hydraulic Press Brick Co. v. Bormans

• Decision Date: 08 December 1885
• Citation: 19 Mo.App. 664
• Parties: HYDRAULIC PRESS BRICK COMPANY, Respondent, v. W. A. BORMANS ET AL., Appellants.
• Court: Missouri Court of Appeals

19 Mo.App. 664

HYDRAULIC PRESS BRICK COMPANY, Respondent,

v.W. A. BORMANS ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Dec. 8, 1885.

APPEAL from the St. Louis Circuit Court, AMOS M. THAYER, Judge.

Affirmed.

KLEIN & FISSE, for the appellants: A bona fide mortgage or deed of trust placed upon the land after the commencement of the building or improvement by the general contractor, but before a particular sub-contractor has commenced his work or the delivery of his materials, is entitled to priority over the lien of such sub-contractor as to the land, but not as to the building. Rec. Stat., sects. 3172-3-4-8, 3193. In cases of this nature, where the rights of third parties are involved, a stricter rule of construction is to be applied than in cases where only the contractor and owner are concerned. Ranson v. Sheehan, 78 Mo. 668, 673. The lien does not commence or attach antecedently to the doing of the work or furnishing materials. McLagaw v. Brown, 11 Ill. 519, 526; Gaty v. Casey, 15 Ill. 192; Davis v. Alvord, 94 U. S. 548 (bk. 24, Law Ed. 285); Mellor v. Valentine, 3 Col. 255; Barber v. Reynolds, 44 Cal. 533; Welch v. Porter, 63 Ala. 232; Schaeffer v. Lohman, 34 Mo. 68; Rothe v. Bellingrath, 71 Ala. 55; Kuhleman v. Schuler, 35 Mo. 142.

EDWARD C. ELIOT, for the respondent: The liens of mechanics and material men, whether as contractors or sub-contractors, take priority over other incumbrances placed upon the real estate subsequent to the commencement of the building. Rev. Stat., sect. 3178; Douglas v. St. L. Zinc Co., 56 Mo. 388; Allen v. Frument Mining Co., 73 Mo. 688; McKim v. Mason, 3 Md. ch. 186; Reading v. Hopson, 90 Pa. St. 494: Brooks v. Railroad Co., 101 U. S. 443 (bk. 25, Law Ed. 1057); Davis v. Bilsland, 18 Wall. 659 (bk. 21, Id. 969); Taylor v. Burlington Railroad Co., 4 Dill. 570; Neilson v. Iowa Railroad Co., 44 Iowa, 71: Manhattan Life Ins. Co v. Paulison, 28 N. J. Eq. 304. The commencement of a building is the first labor done on the ground, which is made the foundation of the building, and is to form part of the work suitable and necessary for its construction. Conrad v. Starr, 50 Iowa, 470; Welch v. Porter, 63 Ala. 232; Phillips, Mech. Liens, sects. 216, 219. As against a mortgagee of land, under mortgage executed after materials and work have been contracted for, and having knowledge of that fact, the lien of the mechanic furnishing such material or performing such labor will take precedence. Dunklee v. Crane, 103 Mass. 470; Howardv. Veazie, 3 Gray, 233; Phœnix Mut. Life Ins. Co. v. Batchen, 6 Ill. App. 621.

LEWIS, P. J., delivered the opinion of the court.

This is a controversy between the plaintiff, a subcontractor who furnished bricks for a house built by defendant, Bormans, as original contractor, on land owned by defendant, Joyeux, on the one part, and the defendant, The Lafayette Mutual Building Association, on the other part, holding a deed of trust on the same premises. The court sitting as a jury found the issues for the plaintiff, and gave judgment for the amount claimed, with a mechanic's lien on the property.

The original building contract was entered into by Bormans and Joyeux on February 15, 1884. On February 26, the plaintiff contracted with Bormans for the delivery of bricks. On March 3, a payment was made to the builder, indicating, according to the terms of the contract, that the work had reached the laying of joists for the first floor. On March 4, Joyeux executed the deed of trust to the Building Association, and this instrument was recorded on March 8. The actual delivery of bricks by the plaintiff began on March 10, and continued until April 1. The only question submitted to us is as to the priority of incumbrance. The material statutory provisions are as follows:

“Sec. 3172. Every mechanic or other person who shall do or perform any work or labor upon, or furnish any materials * * * for any building, erection, or improvements upon land, or for repairing the same, under or by virtue of any contract with the owner or proprietor thereof, or his agent, trustee, contractor, or subcontractor, upon complying with the provisions of this article, shall have for his work or labor done, or materials * * * furnished, a lien upon such building, erection, or improvements, and upon the land belonging to such owner or proprietor, on which the same are situated, * * * to secure the payment for such work or labor done, or materials * * * furnished, as aforesaid.”

“Sec. 3178. The lien for work and materials, as aforesaid, shall be preferred to all other incumbrances which may be attached to or upon such buildings, bridges, or other improvements, or the ground, or either of them, subsequent to the commencement of such buildings or improvements.”

The defendants hold that the lien of a sub-contractor first attaches when he begins his work or furnishes materials; notwithstanding the preference given to it by section 3178 over “all other incumbrances which may be attached * * * subsequent to the commencement of such buildings or improvements.” This language, they contend, must be taken literally only as to original contractors, whose right to compensation attaches from the commencement of the building; and can not reasonably be applied to sub-contractors, who may furnish neither labor nor materials before the building is half completed. Missouri decisions throw no direct light on the distinction thus advanced. In Douglas v. Zinc Co. (56 Mo. to 388), a literal interpretation is given the words ““commencement of the buildings,” but that was a case of original contract. In the case of repairs put on an old building, or of machinery put into a building already completed, no rational interpretation can carry the preference back to the original construction of the building which received such additions. In such cases, the expression, “commencement of the buildings or improvements,” means nothing more than the commencement of the repairs or additions. Reilly v. Hudson, 62 Mo. 383. No relation exists between such repairs or additions and the original construction, as is always apparent in the case of materials or labor furnished towards the consummation of the original construction itself.

The authorities cited and the statute itself seem to sustain the defendants' position that the lien in all cases attaches from the time of the furnishing of the work or materials. Schaeffer v. Lohman, 34 Mo. 68; Kuhleman v. Schuler, 35 Mo. 142. This general rule may serve, among other useful purposes, to indicate, in the event of a change of ownership, who may be held responsible to the contractor's demand. But, like all general rules, it must be taken subject to such modifications, whether of extension or of limitation, as may be found imposed by special regulation. Thus, the law gives a right of lien in general...