Langdon v. Kleeman
| Decision Date | 28 March 1919 |
| Docket Number | No. 19846.,19846. |
| Citation | 278 Mo. 236,211 S.W. 877 |
| Parties | LANGDON v. KLEEMAN et al. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Jackson County; William O. Thomas, Judge.
Suit by Margaret Langdon, as owner of property, against Dierks & Sons Lumber Company, and others, as mechanic's lien claimants, in which Sarah F. Kleeman, as assignee and holder of a note secured by a trust deed on the property, was also made a defendant. From a judgment holding the liens valid, but junior to the trust deed, seven of the lien claimants appeal. Judgment reversed, and cause remanded, with directions.
J. S. Bassett, Cooper, Neal & Wright, Thomson, Dew & Brasher, W. A. Harnsberger, Davis & Woodruff, and Alfred Gregory, all of Kansas City, for appellants.
Rees Turpin and Thomas H. Reynolds, both of Kansas City, for respondents.
This is an appeal from an action brought in the circuit court of Jackson county, at Kansas City, under the statute in relation to liens of mechanics and materialmen (article 3, c. 74, R. S. 1909, as amended; Laws 1911, p. 314), providing for the institution of suits for the adjudication of the rights, interests, and liens of mechanics, and of other claimants therein specified. Margaret Langdon, plaintiff in the action below, was the owner of the property involved herein, located in Kansas City. The contracts made by the lien claimants were entered into by them with her, through Thomas Kelly, her brother, as her agent. The work was commenced in the erection of a building on the property in July or August, 1912. On January 2, 1913, Margaret Langdon executed a deed of trust, recorded January 4, 1913, to one Thompson, as trustee, to secure a note for $12,500, made to the Pratt-Thompson Investment Company. On April 21, 1913, the investment company sold the note to Sarah F. Kleeman, the respondent. There was no record of this transfer. Prior to the purchase of the note, Sarah Kleeman's husband, acting as her agent in the matter of the purchase, went out and examined the property, and saw the building was then in process of erection.
Thereafter, various claimants filed mechanics' liens against the property as contractors for some portion of the improvement, and brought separate suits to enforce their respective liens, making the owner of the property, Thompson, the trustee, and the investment company defendants. Later, the suit at bar was brought by Margaret Langdon, the owner of the property, and, it having been discovered before the trial that Sarah Kleeman was the assignee and holder of the note, she was made one of the defendants. The circuit court held the mechanics' liens valid against the property, but that the lien of the deed of trust was superior thereto. The effect of this finding was that the liens of claimants were held to attach to the equity of redemption, but did not bind the interest of the respondent in the property, because she, as the holder of the note and deed of trust, was not made a party to the proceedings to enforce the mechanics' liens within 90 days after the filing of same. Seven of the lien claimants appealed from this judgment.
The facts summarized, therefore, are that the lien claimants, in suits to enforce their liens, made the owner of the property and the trustee, and the beneficiary in the deed of trust to whom the note was made payable, parties defendants, but did not thus make the assignee of the note because of a lack of knowledge or any means of knowing of the assignment to her of the note and deed of trust securing same. The question seeking review, therefore, is whether the liens of the lien claimants are entitled to priority over that of the assignee of the note and holder of the deed of trust.
I. It is well-settled law in this state that a mechanic's lien dates from the commencement of the work on the building, or the furnishing of the materials therefor. Riverside Lbr. Co. v. Schafer, 251 Mo. loc. cit. 548, 158 S. W. 340, and cases.
The furnishing of the materials and the commencement of the work in this case antedated the deed of trust. As between the mechanics' liens and that of the original payee in the note, in whose behalf the deed of trust was made, the former were entitled to priority over the latter.
Respondent, as assignee of the note, contends that this does not affect her rights because the statute (section 8221, R. S. 1909) requires that in all suits to enforce liens of this character the parties to the contract and all other persons interested in the matter in controversy, or in the property charged with the lien, may be made parties, and such as are not so made shall not be bound by the proceedings; and that, not having made the respondent a party defendant within the 90 days after the filing of the liens, as required by section 8228, R. S. 1909, they waived their original priority.
Waiver is essentially a matter of intention. It need not be proved by express declarations, but may be shown by the acts and conduct of the parties, or even, under some circumstances, by their nonaction. Whatever parties do or forbear to do, therefore, their acts or omissions, to be construed as waivers, must be so manifestly consistent with and indicative of an intention to relinquish the particular right or benefit that no other reasonable explanation of their conduct is possible. Mich. Say. & L. Ass'n v. Trust Co., 73 Mo. App. loc. cit. 165; Stiepel v. Life Ass'n, 55 Mo. App. 224; Hurley v. Farnsworth, 107 Me. loc. cit. 309, 78 Atl. 291; Berman v. Fra. Health & Accdt. Ass'n, 107 Me. 373, 78 Atl. 462; Parsons v. Lane, 97 Minn. loc. cit. 104, 106 N. W. 485, L. R. A. (N. S.) 231, 7 Ann. Cas. 1144; Kiernan v. Dutchers Co., 150 N. Y. loc. cit. 194, 44 N. E. 698.
Although it is evident from the general principles above announced that a waiver may be created by implication, the question as to whether or not it exists in a particular case, being one of intention, must be determined by the facts and circumstances of that case (Mims v. Macon, etc., R. Co., 3 Ga. 333; Pope v. Graham, 44 Tex. 196; Stribling v. Splint Coal Co., 31 W. Va. 82, 5 S. E. 321; Avery v. Hackley, 20 Wall. 407, 22 L. Ed. 385), and in no case will a waiver be presumed in the absence of evidence clearly tending to show it (Muench v. Valley Nat. Bnk., 11 Mo. App. 144).
The affirmative facts in the instant case disclose no intention indicative of a waiver. The lien claimants, in their suits to enforce their liens, made defendants of all parties who within their knowledge or in the exercise of reasonable diligence they were enabled to determine had any interest in the controversy or the property charged with the liens. To have done less than this, in the face of a plain statutory requirement, and a knowledge of the existence of other necessary parties defendant, would have constituted a willful and deliberate abandonment of that priority in the enforcement of their claims accorded to them by the law. The dominating influence of self-interest, based on average human experience, that a prior right will not be relinquished without reason, sustains the conclusion that such was not their purpose. In the absence of any...
To continue reading
Request your trial