Independence Sash, Door & Lumber Co. v. Bradfield

• Decision Date: 30 January 1911
• Citation: 134 S.W. 118,153 Mo. App. 527
• Court: Missouri Court of Appeals
• Parties: INDEPENDENCE SASH, DOOR & LUMBER CO. v. BRADFIELD et al.

134 S.W. 118

153 Mo. A. 527

INDEPENDENCE SASH, DOOR & LUMBER CO. v. BRADFIELD et al.

Kansas City Court of Appeals. Missouri.

January 30, 1911.

Rehearing Denied February 13, 1911.

1. APPEAL AND ERROR (§ 882)—ESTOPPEL TO ALLEGE ERROR—VARIANCE.

Where the petition of a materialman to enforce his lien alleges that the contract for the building was made with a husband and wife, which is admitted by the answer, the court on appeal will hold the admission conclusive, though the evidence was that the contract was signed by the husband alone, as against the husband's contention that there was a variance.

2. MECHANICS' LIENS (§ 154)—VERIFICATION OF NOTICE—SIGNATURE.

A lien notice filed by a corporation, verified by E. C. H., "Secretary," is sufficiently verified, as the word, "secretary," is merely descriptive of the official title.

3. MECHANICS' LIENS (§ 124) — STATUTES— NOTICE OF LIEN—SERVICE.

As the mechanic's lien statutes are highly remedial, and should be given a liberal construction, though they require a subcontractor or materialman to serve notice on the owner, owners, or agent of the property, an honest mistake in ascertaining and stating the names of all the owners in the notice will not defeat the lien, and hence the service of lien notice on one of two co-owners of property affected thereby is sufficient to hold his interest or estate subject to the lien.

4. HUSBAND AND WIFE (§ 207) — CONVEYANCE TO HUSBAND AND WIFE—RIGHTS OF WIFE—MARRIED WOMAN'S ACT.

Under a conveyance of land to a husband and wife since the married woman's act of 1889 (Rev. St. 1889, §§ 6856-6870), each of the grantees has an interest, not only in the inheritance, but also in the possession, which he or she may sue alone to protect.

5. MECHANICS' LIENS (§ 57)—ESTATES SUBJECT—ESTATES BY THE ENTIRETY.

Where a conveyance of land was made to a husband and wife since the married woman's act of 1889 (Rev. St. 1889, §§ 6856-6870), each of the grantees is an owner within the mechanic's lien laws, and may, by contract, subject his or her estate to a lien for improvements on the land, though the other does not join in the contract.

Appeal from Circuit Court, Jackson County; Walter A. Powell, Judge.

Action by the Independence Sash, Door & Lumber Company against J. J. Bradfield and others. From a judgment for plaintiff, defendants appeal. Affirmed.

David I. White and I. J. Ringolsky, for appellants. W. B. Kelley and Horace Sheley, for respondent.

JOHNSON, J.

Action to enforce a mechanic's lien. Plaintiff, a materialman, furnished material for a building erected by Hugh W. Heinselman and Mary A. Heinselman, husband and wife, on land they purchased in 1907, and held as tenants by the entirety. Plaintiff furnished the material under contract with the contractor (defendant Bradfield) who, it is admitted, erected the building under a contract with both tenants. The petition alleges "that said property was at the date of furnishing said material, and now is, the property of the defendants Hugh W. Heinselman and Mary A. Heinselman, and the said J. J. Bradfield was the original contractor with the said Hugh W. and Mary A. Heinselman for the erection of said building." The lien paper alleged that Hugh Heinselman was the owner, and did not mention the fact that his wife had an interest in the property or was a party to the contract for the improvement. It was verified by E. C. Harrington, who appended the word "secretary" to his signature. Notice of the lien was addressed to and served on the husband alone. On these facts the court rendered judgment in favor of defendant Mary Heinselman, and adjudged that "all the right, title, and interest of the said defendant Hugh W. Heinselman" be charged with the lien, etc. The cause is before us on the appeal of the defendant Hugh.

Four propositions are argued by counsel of the appealing defendant, viz.: First. "There was a variance between the material allegations in the plaintiff's petition and the proof." Second. "There was no verification as required by law of the lien filed with the clerk of the circuit court of Jackson county, Missouri, and the court erred in admitting the lien paper offered in evidence by the plaintiff over the objection of the defendants." Third. "The notice of the subcontractor of its intention to file a lien on the property should have been served on all of the owners." Fourth. "As the property in question was owned jointly by Mary A. Heinselman and Hugh W. Heinselman in an estate by the entirety, the court erred in rendering judgment in favor of Mary A. Heinselman and against Hugh W. Heinselman. The judgment, if at all, should have been rendered against them both or against neither." We shall determine these questions in the order stated.

1. This point rests on the contention that the petition alleges a joint...