Kirkwood Mfg. & Supply Co. v. Sunkel

• Decision Date: 19 April 1910
• Citation: 128 S.W. 258,148 Mo. App. 136
• Court: Missouri Court of Appeals
• Parties: KIRKWOOD MFG. & SUPPLY CO. v. SUNKEL.

128 S.W. 258

148 Mo. App. 136

KIRKWOOD MFG. & SUPPLY CO. v. SUNKEL.

St. Louis Court of Appeals. Missouri.

April 19, 1910.

Rehearing Denied May 17, 1910.

1. MECHANICS' LIENS (§ 157)—LIEN CLAIM— DESCRIPTION—LAND NOT SUBJECT TO LIEN.

Where a mechanic's lien statement described the land on which the building was constructed, and also adjoining land belonging to another which was not subject to the lien, it was not fatally defective, but was enforceable as to the parcel containing the improvement.

2. MECHANICS' LIENS (§ 157)—MISDESCRIPTION— IMPROVEMENT APART FROM GROUND.

Where a mechanic's lien claim misdescribed the ground on which the improvement was erected, he could have a lien on the improvement apart from the ground.

Appeal from Circuit Court, St. Louis County; Jno. W. McElhinney, Judge.

Action by the Kirkwood Manufacturing & Supply Company against William J. Hogan and another. From a judgment foreclosing a materialman's lien, defendant Louise Sunkel appeals. Reversed and remanded, with directions.

Thos. K. Sprinkle, for appellant. J. G. Hawken, for respondent.

GOODE, J.

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: "A lot of ground containing one acre, beginning at a point of the center line of Schultze avenue, where said center line is cut by the south line of property of Minnie Michael described in a deed dated March 25, 1907, and of record in the recorder's office of St. Louis county, Missouri; thence west along said south line of said Michaels two hundred seventy-two and one-quarter (272¼) feet; thence south and parallel with said center line of Schultze avenue one hundred sixty (160) feet; thence east and parallel with the above-defined north line two hundred seventy-two and one-quarter (272¼) feet to the center line of said Schultze avenue; and thence north along said center line of Schultze avenue one hundred and sixty (160) feet to the point of beginning. The same being the east one-half of a lot of ground described in deed of record in the recorder's office of St. Louis county in Book 213, page 145."

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 272¼ 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 80 feet on the avenue, instead of 160 feet, and, instead of extending back 272¼ feet, extends back twice that distance, or 544½ feet. Annie H. Sunkel owns a lot 80 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:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In describing the property in the lien account and petition, and also in the judgment, only the west 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 west 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...