I. R. Goldberg Plumbing Supply Co. v. Taylor

Decision Date07 February 1922
Docket NumberNo. 16995.,16995.
Citation237 S.W. 900,209 Mo. App. 98
PartiesI. R. GOLDBERG PLUMBING SUPPLY CO. v. TAYLOR et ux.
CourtMissouri Court of Appeals

others. From judgment for plaintiff against the defendant named and in favor of defendants John E. Taylor and wife, plaintiff brings error. Affirmed.

H. A. & Harry S. Gleick, of St. Louis, for plaintiff in error.

F. W. Imsiepen and Geo. F. Osiek, both of St. Louis, for defendants in error.

BRUERE, C.

This is a suit to enforce a mechanic's lien for materials furnished against the premises of the defendants in error for the sum of $329.69.

One John E. Wood was the original contractor under contract with defendant John E. Taylor for the installation of a heating plant on premises held by defendants John E. Taylor and Sallye M. Taylor, husband and wife, as tenants by the entirety. Plaintiff furnished the materials for the heating plant under contract with the contractor, John E. Wood.

Upon trial had before the circuit court of the city of St. Louis without a jury, a judgment was entered for plaintiff and against John E. Wood for the amount sued for, and in favor of defendants John E. Taylor and Sallye M. Taylor; the court holding that plaintiff was not entitled to any lien against said premises. Unsuccessful in his motion for a new trial, plaintiff in due time sued out a writ of error returnable to this court.

At the trial it was agreed between the parties that all proper preliminary steps precedent to filing the mechanic's lien action had been taken, and that John E. Taylor and Sallye M. Taylor, his wife, were the owners of the property in question and held same as an estate by the entirety. The evidence was uncontradicted that the heating plant was installed against the wish and protest of the defendant Sallye M. Taylor; and the defendant does not attack the judgment in her favor.

The sole question raised here is whether the defendant John K. Taylor had such an interest in the premises in question as could be subjected to a mechanic's lien judgment and sold under execution issued thereon.

At common law in estates held by the entirety the husband was entitled to the rents and profits of the premises during the joint lives of himself and wife, and upon the death of either, by virtue of the grant which vested the entire estate in each grantee, the survivor succeeded to the whole estate. This right to the possession and usufruct of the wife's real estate did not flow from the unity of the estate, but was given the husband as his marital right (jure mariti). It was a vendible interest, but his interest in the estate by the entirety could not be aliened during the joint lives of himself and wife without the concurrence of the wife,

The Married Woman's Act of 1889 (sections 6864 and 6869, Missouri Revised Statutes of 1889) deprived the husband of his right to the use and possession of his wife's real estate; so that the jus mariti hi the estate by the entirety no longer exists in this state. But said act did not affect the title in said estate, but left it as it was at common law. Both husband and wife are seized of the entirety; neither can sever the union of interest without the concurrence of the other each and both own the whole estate during their joint lives, and upon the death of either the survivor continues to own the whole estate; each is seized of an indivisible entirety; so neither has a separate interest therein that can be aliened. Stifel's Union Brewing Co. v. Saxy, 273 Mo. 159, 201 S. W. 67, L. R. A. 1918C, 1009; Ashbaugh v....

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