Hydraulic Press Brick Co. v. Lane

• Decision Date: 08 January 1918
• Docket Number: No. 14925.,14925.
• Citation: 198 Mo. App. 438,200 S.W. 306
• Parties: HYDRAULIC PRESS BRICK CO. v. LANE et al.
• Court: Missouri Court of Appeals

200 S.W. 306

198 Mo. App. 438

HYDRAULIC PRESS BRICK CO. v. LANE et al.

No. 14925.

St. Louis Court of Appeals. Missouri.

Submitted on Briefs December 3, 1917.

Opinion Filed January 8, 1918.

Appeal from St. Louis Circuit Court; Wm. M. Kinsey, Judge.

Action by the Hydraulic Press Brick Company against Charles E. Lane, the Laclede Trust Company, and others. From the judgment rendered, the Trust Company appeals. Affirmed.

Henry H. Oberschelp, of St. Louis, for appellant. Eliot, Chaplin, Blayney & Bedal and McLaran & Garesche, all of St. Louis, for respondent.

Statement.

REYNOLDS, P. J.

This is an action brought to enforce a mechanics' or materialmen's lien on lots 22, 23 and 24 of Marcus Avenue Heights, in city block 4391B in the city of St. Louis, it being averred that they are the same property theretofore conveyed by deed from Eva L. Wertz to Monroe Construction Company, dated February 4th, 1914, and recorded February 4th, 1914. The defendants named in the petition are Charles E. Lane and Lora B. Lane, his wife, Eva L. Wertz, the Monroe Construction Company, Richard F. Goodnow, trustee, Fred W. Lovett, Laclede Trust Company, St. Louis Lumber Company, Isaac R. Goldberg, doing business as Isaac R. Goldberg & Company, and "the Unknown Consorts, Heirs, Devisees Donees, Alienees, or Immediate mesne or remote, voluntary or involuntary grantees of Fred W. Lovett." Setting out that plaintiff, on January 29th, 1914, had entered into a contract with the Monroe Construction Company, whereby it agreed to furnish to that company certain brick for three one-story buildings to be known as numbers 4866, 4868 and 4870, Carter Avenue, in the city of St. Louis, situate on premises which are described as above, it is averred that the buildings are erected on contiguous lots. It is further averred that at the time of making the contract with the Monroe Construction Company, the legal title to the above described premises was in Charles E. Lane and that on February 3rd, 1914, Lane and his wife transferred the property to defendant Eva L. Wertz by deed duly recorded, and on February 4th, Eva L. Wertz transferred the property to the defendant Monroe Construction Company. Averring that plaintiff is unable to state whether at the time it entered into its contract with the Monroe Construction Company that company was the general contractor for the erection of the building under contract with Charles E. Lane, the then owner, or with the defendant Eva L. Wertz, who afterwards became the owner, or whether the Monroe Construction Company was the equitable owner of the property at the time, plaintiff declares its belief of one alternative or the other and its ignorance as to whether it be the one or the other. It is then averred that commencing February 12th, 1914, and ending March 24th, 1914, plaintiff continuously furnished to the Monroe Construction Company under its contract, brick to the value of $563.30 for the three buildings described and that this material was furnished for and actually entered into the construction of the three one-story brick buildings, the particulars appearing in the account filed, which sets out the items and dates. The petition then makes the necessary averments as to filing the lien claim in the proper office, the latter being done July 24th, 1914. As there is no question made as to the lien account, its correctness and filing, it is not necessary to further particularize it. It claimed a balance due and unpaid of $327.15, for which plaintiff claims a lien against the contiguous lots as described and the three buildings thereon. It is further averred that on September 23rd, 1914, the defendant St. Louis Lumber Company filed in the circuit court of the city of St. Louis its lien against the property herein described in the sum of $72.14; that on October 2nd, 1914, the defendant Goldberg filed with the same officer his lien against the property described, in the sum of $575.69. The petition further sets out that the defendants Goodnow, trustee, and Lovett claim some interest in the property and improvements under certain deeds of trust, all dated February 4th, 1914, executed by the Monroe Construction Company to Richard F. Goodnow, trustee for Fred W. Lovett, the first deed of trust on each lot securing one principal note for $1650, due three years after date, with six semiannual interest notes each for $49.50, the second securing 26 notes for $25 each and one for $200, the first note due four months from date and one note due each month thereafter, totalling $850, which deeds of trust, it is averred, were filed for record in the office of the Recorder of deeds of the city of St. Louis at dates set out, not now material. It is further averred that the defendant Laclede Trust Company at one time claimed to own certain of the notes secured by certain of the deeds of trust mentioned but plaintiff, it is averred, is ignorant whether that Trust Company still owns the same, wherefore that Trust Company is made a defendant to the suit. On information and belief, it is averred that Fred W. Lovett and the Monroe Construction Company are not now the present owners or holders of the notes secured by the deeds of trust heretofore set out and plaintiff therefore states that they are and that it verily believes that there are persons interested or who claim to be interested in the subject-matter of the petition and the real estate hereinbefore described, whose names cannot be inserted herein because they are unknown to it and that such unknown persons derive or claim to derive their titles or claims as consorts, heirs, devisees, donees, alienees or immediate, mesne or remote, voluntary or involuntary grantees of Fred W. Lovett and the Monroe Construction Company; that Fred W. Lovett, the Monroe Construction Company, and defendant Laclede Trust Company, were the last persons known to plaintiff to have an interest in the property by virtue of the deeds of trust hereinbefore set forth, and that said unknown persons derive or claim to derive their titles or claims as consorts, etc., or voluntary or involuntary grantees of Lovett and the Monroe Construction Company and the Laclede Trust Company by virtue of the notes secured by the deeds of trust before set out. Plaintiff therefore prays that an order of publication issue for the unknown consorts, etc., grantees of the defendants Lovett, the Monroe Construction Company and Laclede Trust Company; that it have judgment against the defendant Monroe Construction Company for the sum of $327.15, with interest thereon at the rate of 6 per cent. per annum from April 1st, 1914, and for costs, and a special judgment and decree binding and subjecting the premises described, being contiguous lots of ground, and the improvements thereon, to and for the payment of plaintiff's judgment, with interest and costs of suit and that the court determine, establish and enforce the various and respective rights of the parties to this suit and in case of sale of the property, that the court equally distribute the proceeds thereof; that if there are other persons interested in the subject-matter of the suit they be allowed to intervene as parties plaintiff or defendant, and for such other and further orders as may be meet and proper.

This petition was duly verified and it was filed on October 5th, 1914, in the office of the clerk of the circuit court of the city of St. Louis.

The attached statement of account referred to in the petition shows the dates of delivery of various grades of brick to the Monroe Construction Company for use in the three houses described in the petition, no attempt being made to apportion the brick for each house, but the account being stated as one account against all three.

The petition, as stated, was filed on October 5th, 1914. That being the first day of the October term of the court, the summons was returnable to the first day of the succeeding term, which would be December 7th, 1914. On that date an answer and intervening petition for the enforcement of a mechanics' lien was filed by the Glencoe Lime & Cement Company, which was afterwards withdrawn, and on the same day an answer was filed by the St. Louis Lumber Company. This latter substantially follows the allegations of the petition as to the notes and deed of trust and unknown ownership of the note, and sets out that a claim of a lien for $72.14 was duly filed by the St. Louis Lumber Company on September 23rd, 1914. The lots are described as in the petition. On December 9th, 1914, an order of publication was sued out by plaintiff and ordered to be issued and was issued on December 10th against all the named defendants and "the unknown consorts, heirs, grantees," etc., of Fred W. Lovett. The order is in usual form and sets out that it appeared by the petition that there are unknown persons interested or claiming to be interested in the property, deriving title through Fred W. Lovett by virtue of the deeds and deeds of trust set out in the petition, describing them, and that plaintiff claims a lien for $327.15, the St. Louis Lumber Company for $72.14, and Goldberg for $579.99, and the unknown consorts, etc., claiming under Lovett, are ordered to appear in court at the February, 1915, term and answer, etc. It was first published December 17th, 1914, its last publication being on January 7th, 1915. Proof of publication was filed February 11th, 1915.

On December 16th, 1914, the Laclede Trust Company filed its answer, afterwards filing an amended answer on February 25th, 1915, to plaintiff's petition and to the intervening petition of the St. Louis Lumber Company, and on April 9th, 1915, the Laclede Trust Company was granted fifteen days further time to plead. On April 24th, 1915, it filed its second amended answer.

In this second amended answer the Laclede Trust Company, denying each and every allegation in the petition, by way of cross-bill, sets up that on February 4th, 1914, the Monroe Construction...