Kirkwood Manufacturing & Supply Company v. Sunkel
| Decision Date | 19 April 1910 |
| Citation | 128 S.W. 258,148 Mo.App. 136 |
| Parties | KIRKWOOD MANUFACTURING & SUPPLY COMPANY, Respondent, v. LOUISE SUNKEL, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis County Circuit Court.--Hon. J. W. McElhinney Judge.
REVERSED AND REMANDED (with directions).
Judgment reversed and cause remanded.
Thos H. Sprinkle for appellant.
(1) The description of the property was not a true description or so near as to identify same, consequently the lien must fail and suit against the owner dismissed. R. S. 1899, secs. 4203 4207; Williams v. Porter, 51 Mo. 441; Wright v. Beardsley, 69 Mo. 548; Matlack v. Lare, 32 Mo. 262; Oster v. Rabeneau, 46 Mo. 595; Mayes v. Murphy, 93 Mo.App. 37; Planing Mill v. Christophel, 60 Mo.App. 106; Powers, etc., v. Muir, 123 S.W. 490. (2) The contract sued on herein not being entered into between respondent and Hogan, is not binding on this appellant. Duross v. Broderick, 78 Mo.App. 260; Lumber Co. v. Myers, 87 Mo.App. 671; Richardson v. O'Connell, 88 Mo.App. 12; Hengstenberg v. Hoyt, 109 Mo.App. 622. (3) Furnishing material to workmen creates no right of lien in the party furnishing the material. Boisot on Mech. Liens, sec. 244, p. 238; Greenway v. Turner, 4 Md. 296; Ogg v. Tate, 52 Ind. 159; Brown v. Cowan, 110 Pa. St. 588.
J. G. Hawken for respondent.
(1) The rule as to description of the property is that if there appears enough to enable a party familiar with the locality to identify the premises, with reasonable certainty, it is sufficient. DeWitt v. Smith, 63 Mo. 267. (2) The Mechanics' Lien Law is a remedial statute, and must not be construed with unfriendly strictness. McQuillin's Mo. Practice, sec. 1784, p. 1088, and authorities there cited. (3) Hogan's contract with respondent is binding upon appellant. The materials furnished were used in defendant's house. Lumber Co. v. Harris, 107 Mo.App. 148; Crane Co. v. Neel, 104 Mo.App. 177.
Plaintiff, an incorporated company, furnished material in 1907 to William J. Hogan, who had contracted with the defendant Louise Sunkel to build a two-story brick dwelling for her on a lot she owned in St. Louis county. The material furnished consisted of door frames, window frames, moulding and other articles which will not be enumerated as there is no contention about them. Hogan did not pay plaintiff for the material and in due time a lien account was filed and the present action brought to enforce it. The controversy in the case relates to the sufficiency of the description in the lien account, petition and judgment of the parcel of ground on which a lien is sought. This is the description contained in the three documents:
The court found in favor of plaintiff and against Hogan the contractor, and that the latter was indebted to plaintiff in the sum of $ 479.20, for which judgment was entered against Hogan; further found plaintiff had established and was "entitled to a lien for said sum against a certain two-story brick dwelling house on a certain piece or parcel of ground, situated in the county of St. Louis and State of Missouri, and described in said petition as follows, to-wit," whereupon the above description is set out. The concluding part of the judgment orders, "if sufficient property of said defendant William J. Hogan cannot be found wherewith to satisfy said judgment, interest and costs, then that the same or the residue thereof be levied on and enforced against the hereinabove described building and land upon which the same is situated as aforesaid, charged with a special lien thereof, and that a special fieri facias issue in conformity herewith." The description given in the judgment, petition and lien statement covers a lot on the west side of Schultze avenue, facing east, and 160 feet wide by 272 1-4 feet deep, or extending back that far from the west line of Schultze avenue. The use of the word "avenue" suggests the lot is in a town; but it is not so stated and we surmise from the record it is in a platted addition to the city of Kirkwood, which lies outside the city limits. The lot owned by defendant Louise Sunkel has a width of only eighty feet on the avenue instead of one hundred and sixty feet, and instead of extending back two hundred seventy-two and one-quarter feet, extends back twice that distance, or five hundred forty-four and one-half feet. Annie H. Sunkel owns a lot eighty feet wide immediately south of the lot of Louise Sunkel and extending back half the depth of the latter lot. This plat will indicate the situation of the properties and that portion (i. e., the east half) of Louise Sunkel's which is inclosed by heavy lines is where the house is built.
[SEE ILLUSTRATION IN ORIGINAL]
In describing the property in the lien account and petition and also in the judgment, only the east half of appellant's lot was described, and along with it all of Annie H. Sunkel's lot. The evidence taken at the trial proved this, but nevertheless the judgment followed the description given in the lien statement and petition. Perhaps the recital quoted from the judgment would induce us to conclude the court meant to declare a lien only on the building, but the final paragraph orders the lien enforced against the building and the land as described in the judgment; which would require it to be enforced against Annie H. Sunkel's lot as well as the east half of Louise Sunkel's. The latter's attorney contends the description was so erroneous as to prevent a lien from attaching to any part of the premises. The statute requires a person who seeks to fasten a lien on property, to set out in his account a true description of the property on which the lien is intended to apply or one "so near as to identify the same." [R. S. 1899, sec. 4207.] There is no uncertainty in the description in the lien account, but the difficulty is, part of the ground described did not belong to the owner of the house for which the material was furnished and, of course, is not subject to plaintiff's claim. Hence the question for decision is not whether the ground is described with certainty, but whether the lien can be maintained on that portion of it owned by Louise Sunkel and on which the building stands, when the proof shows the calls and boundaries take in a lot she does not own. According to the decisions this error did not prevent the lien from attaching upon the portion of the ground owned by her and where the building is. The rights of no purchaser, creditor or other lienor or incumbrancer are involved, the case stands between Louise Sunkel and plaintiff who furnished the material which became part of her house. The cases nearest in point are those...
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