Landau v. Cottrill

• Decision Date: 22 December 1900
• Citation: 159 Mo. 308,60 S.W. 64
• Parties: LANDAU et al. v. COTTRILL.
• Court: Missouri Supreme Court

60 S.W. 64

159 Mo. 308

LANDAU et al. v. COTTRILL.

Supreme Court of Missouri, Division No. 1.

December 22, 1900.

MECHANICS' LIENS—ACTION TO FORECLOSE—PARTIES—ACCOUNT FOR MATERIALS—CONCLUSIVENESS—IMPEACHMENT BY PAROL — SALE SUBJECT TO MORTGAGE—RIGHTS OF PURCHASER.

1. Under Rev. St. 1889, §§ 6711, 6713, preferring a lien for materials to all other incumbrances subsequent to the commencement of the buildings, and providing that, in proceedings to enforce such lien, all persons interested shall be made parties, but such as are not shall not be bound, the owners of notes, who were also the beneficiaries in a deed of trust securing them at a time when materials commenced to be furnished for buildings on the land incumbered by the deed, are not bound by proceedings to enforce the lien for the materials, to which they were not parties, though the original payee of the notes or the trustee is made a party.

2. A material man entitled to a lien superior to an incumbrance subsequent to the commencement of the buildings, provided he files "a just and true account of the demand due him," as required by Rev. St. 1889, § 6709, is bound by the account thus filed, and cannot show by parol, for the purpose of cutting out an incumbrance executed and recorded before the date of commencement given in the lien, that the buildings were commenced before such date.

3. A purchaser of land expressly subject to a mortgage could not defeat the mortgage by purchasing a title on foreclosure of a mechanic's lien for a mere trifle, compared with the value of the property and the interest of the mortgagee.

Appeal from St. Louis circuit court; John A. Talty, Judge.

Foreclosure by Arthur Landau and others against W. R. Cottrill and others. From a decree for plaintiffs, defendant Cottrill appeals. Affirmed.

R. M. Nichols and H. H. Denison, for appellant. Bryan & Christie, for respondents.

BRACE, P. J.

On the 8th of December, 1892, Henry Maltby and T. Jefferson Roe, being the owners, by their deed of trust, of that date duly executed and recorded, conveyed a lot of ground in lot or block 32 of Peter Lindell's Second addition to the city of St. Louis, and in block 4,877 south, of said city, particularly described in the petition by metes and bounds, to M. B. O'Reilly, to secure to Will J. Howard the payment of 1 principal note for the sum of $16,000, payable 5 years from date, 1 principal note for the sum of $4,000, payable 5 years after date, and 10 interest notes, each for the sum of $480, payable in 6, 12, 18, 24, 30, 36, 42, 48, 54, and 60 months, respectively, from date, and also 10 interest notes, each for the sum of $120, payable in the same time, respectively, and all of even date with the deed of trust. Afterwards, in the latter part of December, 1892, Mrs. Landau, who was the curatrix of her minor children, the plaintiffs herein, purchased said notes with funds belonging to the estate of her said wards, and they were then assigned and delivered to her as such curatrix; and thus the plaintiffs became the owners and holders thereof, and of the deed of trust aforesaid securing the payment thereof. Afterwards Henry Maltby, having in the meantime acquired the interest of T. Jefferson Roe in the premises, subject to said deed of trust, by mesne conveyances, on the 20th of July, 1893, executed a deed of trust of that date, duly recorded, conveying the premises to Joseph C. Darst, to secure to Joseph Gummersbach the payment of a principal note of that date for $6,000, payable May 1, 1894, and "three interest notes of same date, for $90.00, $90.00, and $120, maturing Oct. 8, 1893, Jan'y 8th, 1894, and May 8th, 1894, respectively." Default having been made in the payment of the first of said interest notes, said deed of trust was duly foreclosed by sale on the 10th of November, 1893; and the said Gummersbach became the purchaser thereof for the sum of $100, and received the trustee deed therefor, dated November 10, 1893. Afterwards by two warranty deeds, duly executed and recorded, one dated December 1, and the other December 7, 1893, the said Gummersbach conveyed the premises, subject to plaintiffs' deed of trust, to the defendant William R. Cottrill. Afterwards, on the 6th day of January, 1894, in an action in the circuit court, city of St. Louis, wherein the Hynson Hardware Company was plaintiff, and Clarence C. Marsh, Will J. Howard, M. B. O'Reilly, J. J. Darst, Joseph Gummersbach, and Henry Maltby were defendants, the said plaintiff recovered judgment against the said Maltby for the sum of $288 and costs, which was thereby charged as a mechanic's lien upon the premises, for material furnished between January 5 and June 7, 1893, for six buildings then being erected on the premises. On the 8th day of January, 1894, this judgment was assigned to the said Darst by the said hardware company, and special executions thereon issued June 27, 1895, under which the premises were sold on the 5th of August, 1895, and the said Cottrill, through Darst, became the purchaser thereof for the sum of $100, and received the sheriff's deed therefor. Prior to the time when Cottrill purchased the property from Gummersbach, all the interest notes which matured under plaintiff's deed of trust were paid by the then holders of the equity of redemption. After that time they were paid by Cottrill, who continued paying them as they matured until the last two matured on December 8, 1897, when the principal notes also matured. The principal notes of $20,000 and these two last interest notes he then and thereafter refused to pay, claiming title superior to plaintiffs' deed of trust, under the sheriff's deed to him, made in pursuance of the sale under the execution on the mechanic's lien judgment aforesaid. Thereupon this suit in equity was instituted on the 8th of February, 1898; the plaintiffs setting up these and other facts, not necessary to be stated, in the petition, and praying for appropriate relief, upon which issue was joined by the defendant Cottrill, and his title under said sheriff's deed set up as a defense to plaintiffs' action. On the trial the court found all the issues for the plaintiffs, and entered a decree in effect declaring that any lien, right, title, or interest acquired by the said Cottrill by his said sheriff's deed was subject to the lien of plaintiffs' deed of trust, foreclosing the same by order of sale, and directing that the proceeds thereof after payment of costs be applied to the payment of the indebtedness secured by said deed of trust, and the remainder be paid to said defendant. From this decree, Cottrill appeals. So far as is necessary, the evidence will be noticed in the course of the opinion.

By the mechanic's lien law it is provided that the lien for materials furnished for, shall be preferred to all other incumbrances upon, the buildings or grounds subsequent to the commencement of such buildings (Rev. St. 1889, § 6711), and that in all suits to enforce such liens "the parties to the contract shall, and all other persons interested in the matter in controversy may, be made parties, but such as are not made parties shall not be bound by any such proceedings" (Id. § 6713). The plaintiffs were the owners of the notes and the beneficiaries in the deed of trust of December 8, 1892, at the time when the hardware company commenced furnishing the material for the buildings, on the 5th day of January, 1893, as stated in their account filed for a lien. They were such beneficiaries at the time the lien was filed, and at the time the suit was instituted to enforce that lien. They were not made parties to that suit, and were not bound by the proceedings and judgment therein. Crandall v. Cooper, 62 Mo. 478; Coe v. Ritter, 86 Mo. 277; Hicks v. Scofield, 121 Mo. 381, 25 S. W. 755; Russell v. Grant, 122 Mo. 161, 26 S. W. 958. They were strangers to that suit, and their rights were not affected thereby. The fact that Howard, the original payee, was made a party to the suit, did not make plaintiffs parties to the suit, or affect their status in relation thereto. Giraldin v. Howard, 103 Mo. 40, 15 S. W. 383; Bank v. Grewe, 101 Mo. 625, 14 S. W. 708; Id., 84 Mo. 477; Coe v. Ritter, supra; Bannon v. Thayer, 124 Ill. 451, 17 N. E. 54; Boisot, Mech. Liens, § 532. Neither did the fact that the trustee, O'Reilly, was made a party. Stafford v. Fizer, 82 Mo. 393; Rogers v. Tucker, 94 Mo. 346, 7 S. W. 414; Bank v. Grewe, 84 Mo. 478; Lumber Co. v. Oliver, 65 Mo. App. 438; Manufacturing Co. v. Boyce, 74 Mo. App. 354.

These conclusions are, of course, predicated upon the lien as it appeared upon the record, the commencement of which was indicated by the first material furnished, which was on the 5th of January, 1893. On the trial, however, the defendant introduced evidence tending to prove that the buildings were commenced (in October, 1892) prior to the execution of plaintiffs' deed of...