Lee & Boutell Co. v. Brockett Cement Co., No. 33633.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtBohling
Citation106 S.W.2d 451
PartiesLEE & BOUTELL COMPANY, a Corporation, v. C.A. BROCKETT CEMENT COMPANY, a Corporation, ARTHUR GARNEY, Doing Business as GARNEY PLUMBING & HEATING COMPANY, RUST SASH & DOOR COMPANY, a Corporation, HENRY SEUFERT and CHARLES L. SEUFERT, Copartners, Doing Business as SEUFERT BROS. HARDWARE COMPANY, COOK PAINT & VARNISH COMPANY, a Corporation, UNITED BRICK & TILE COMPANY, a Corporation, HENRY R. LEWIS, WEATHERPROOF PRODUCTS COMPANY, a Corporation, KANSAS CITY LIGHT & FIXTURE COMPANY, a Corporation, HELEN C. JOHNSON, JOHN J. LEWIS and HENRY R. LEWIS, Doing Business as S.C. JOHNSON & SON, E.E. MILLER, BADGER LUMBER & COAL COMPANY, a Corporation, STEWART SAND COMPANY, a Corporation, Respondents, GRANT I. ROSENZWEIG, MATHILDE ROSENZWEIG, and PRUDENTIAL INSURANCE COMPANY OF AMERICA, a Corporation, Appellants.
Docket NumberNo. 33633.
Decision Date21 June 1937
106 S.W.2d 451
LEE & BOUTELL COMPANY, a Corporation,
v.
C.A. BROCKETT CEMENT COMPANY, a Corporation, ARTHUR GARNEY, Doing Business as GARNEY PLUMBING & HEATING COMPANY, RUST SASH & DOOR COMPANY, a Corporation, HENRY SEUFERT and CHARLES L. SEUFERT, Copartners, Doing Business as SEUFERT BROS. HARDWARE COMPANY, COOK PAINT & VARNISH COMPANY, a Corporation, UNITED BRICK & TILE COMPANY, a Corporation, HENRY R. LEWIS, WEATHERPROOF PRODUCTS COMPANY, a Corporation, KANSAS CITY LIGHT & FIXTURE COMPANY, a Corporation, HELEN C. JOHNSON, JOHN J. LEWIS and HENRY R. LEWIS, Doing Business as S.C. JOHNSON & SON, E.E. MILLER, BADGER LUMBER & COAL COMPANY, a Corporation, STEWART SAND COMPANY, a Corporation, Respondents, GRANT I. ROSENZWEIG, MATHILDE ROSENZWEIG, and PRUDENTIAL INSURANCE COMPANY OF AMERICA, a Corporation, Appellants.
No. 33633.
Supreme Court of Missouri.
Division Two, June 21, 1937.*

[106 S.W.2d 452]

Appeal from Jackson Circuit Court.Hon. Darius Brown, Judge.

MOTIONS TO DISMISS OVERRULED AND JUDGMENT AFFIRMED.

Grant I. Rosenzweig, Charles E. McCoy and Harry Howard for Rosenzweigs; Alfred M. Seddon of counsel.

(1) General principles of liberal construction under mechanic's lien law are to be applied with much caution where outside parties are concerned. DeWitt v. Smith, 63 Mo. 266; Ransom v. Sheehan, 78 Mo. 674; Barnes v. Robeson, 182 Mo. App. 611; Johnson v. Brill, 295 S.W. 558. (2) Beside proper procedure in proper time, with proper proof, lien can go no further back than the chain of contracts and the property of the contractor. DeRanko v. Lee, 200 S.W. 79; Berkshire v. Holcker, 216 S.W. 560, 202 Mo. App. 433; Powell v. Reininger, 234 S.W. 850; Winslow v. McCully, 169 Mo. 236; Ward v. Nolde, 259 Mo. 285; Hallolell v. Elser, 156 Mo. App. 291; Fathman v. Christophel, 60 Mo. App. 106; Bovard v. Owen, 30 S.W. (2d) 154; Hengstenberg v. Hout, 109 Mo. App. 622; K.C. Planing v. Brunndage, 25 Mo. App. 268; Langdon v. Kleeman, 211 S.W. 877; Horton v. St. Louis, 84 Mo. 606; Davis v. Maysville, 63 Mo. App. 477. (3) A corporation pleaded as a separate entity distinct from its members must remain such. Vennerbeck v. Juergens, 163 Atl. 509. (4) Claimant cannot depart from his pleadings nor recover unless his evidence sustains same. Crawford v. Altman, 139 Mo. 262; Oldman v. Lange, 143 Mo. 100; Cosgrove v. Leonard, 175 Mo. 100; Coons v. St. Louis, 203 Mo. 227; Whipple v. Cooper, 55 Mo. App. 554; Laclede v. Tudor, 169 Mo. 137; Carpenter v. Reliance, 103 Mo. App. 480; State v. Ellison, 270 Mo. 645. (5) To establish equitable trust, evidence must be clear and convincing, leaving no reasonable ground for hesitancy. Granitt v. Delmar, 254 S.W. 97. (6) Fidelity in fact invested not a penny, but on the contrary reaped a profit. (7) If Fidelity had contributed a part its right would not extend to equitable ownership of the whole but only to a lien to the extent of its investment. If others contributed, they would also be entitled to recognition. Monroe v. Collins, 95 Mo. 33. (8) Every purchaser in good faith has a right to rely upon the recorded title under our Recording Acts, and is not affected by unknown equities or outside parties. Allen v. Ray, 96 Mo. 593; Cross v. Watts, 206 Mo. 374; Hume v. Hopkins, 140 Mo. 63; Powers v. Krueckhoff, 41 Mo. 425; Stewart v. Omaha, 283 Mo. 365; McMurry v. McMurry, 258 Mo. 405; Grove v. Heirs, 36 Mo. 523; Condit v. Maxwell, 142 Mo. 266; Ladd v. Anderson, 133 Mo. 625; Harrison v. Moore, 199 S.W. 188; Hayes v. Allenberger, 226 Mo. 119; Boogher v. Neece, 75 Mo. 383; Vance v. Corrigan, 78 Mo. 94; Strong v. Whylard, 204 Mo. 341; Tydings v. Pitcher, 82 Mo. 379; Woodward v. Householder, 289 S.W. 571. (9) Rights of innocent purchaser apply to a purchaser whether purchasing the property itself or a mortgage thereon, and date from investment of the money. Hagerman v. Sutton, 91 Mo. 519; Trigg v. Vermillion, 113 Mo. 230; Hume v. Hopkins, 140 Mo. 63; Stewart v. Omaha, 283 Mo. 365; Patterson v. Booth, 103 Mo. 402; Logan v. Smith, 62 Mo. 455; Hunter v. Hunter, 39 S.W. (2d) 359. (10) Good faith in a purchaser is not destroyed by failure to pursue every possible avenue of information or even by a negligence, unless so gross as to constitute willful and intentional avoidance of knowledge. Edwards v. Thomas, 66 Mo. 468; Stuffelbaum v. DeLashmut, 101 Fed. 367; State v. Diemer, 255 Mo. 336; Platt v. Francis, 247 Mo. 296; Peoples v. Bates, 120 U.S. 556; 28 C.J., pp. 715-17; 8 C.J., pp. 502, 503; United States v. Des Moines, 142 U.S. 510. (11) A title resting upon a "straw" has no standing in equity. Houts v. Hellman, 228 Mo. 655. (12) Equities being equal, the law will prevail. Where fault is mutual the lesser fault prevails. Where an equity claimant could have protected himself at small labor or expense, he cannot be heard in equity. A trust on the basis of obstructing creditors cannot be made the basis of an equitable title. Claimant through equity owner is subject to all the frailities of the equitable title. It is the duty of the lienor to investigate the title of his contractor. Purchaser of a record mortgage must be furnished actual knowledge of outstanding equity, need not make extensive inquiry and need not hunt up person in possession. Friel v. Alewell, 298 S.W. 762; Avery v. Central, 119 S.W. 1106; Phoenix v. Holt, 279 S.W. 717; K.C. Granite v. Jordan, 316 Mo. 1118; Hines v. Hollingsworth, 178 Ky. 233; Beattie v. Butler, 21 Mo. 313.

Wilkinson, Byrum & Gough and W. Raleigh Gough for Prudential Insurance Company of America.

(1) The second count of the answer and cross-petition of the Badger Lumber & Coal Company, seeking the assertion of a mechanic's lien against Lot 3, is not germane to the plaintiff's petition, is not a proper cross-petition under the statutes, and is not sufficient to confer jurisdiction on the court over such subject matter, and the court's decree thereon is without jurisdiction and void. Secs. 3180-3187, R.S. 1929. (a) The cross-petitions under the statute are equitable cross-bills. Dezino v. Drozda, 13 S.W. (2d) 659. (b) The cross-petition in this case, attempting to invoke the jurisdiction of the court over a subject matter entirely foreign to the subject matter of plaintiff's petition, is not a proper cross-petition, but an attempted original suit, and the court acquired no jurisdiction over the subject matter attempted to be raised thereby. 21 C.J. 508; Fulton v. Fisher, 239 Mo. 116, 143 S.W. 438; Mathiason v. St. Louis, 156 Mo. 196, 56 S.W. 890; Wade v. Natl. Bank of Commerce, 221 S.W. 365; Viehmann v. Viehmann, 298 Mo. 356, 250 S.W. 565; Kadlowski v. Schwan, 329 Mo. 446, 44 S.W. (2d) 639; Campbell v. Spotts, 331 Mo. 974, 55 S.W. (2d) 986. (c) The Stewart Sand Company answer and cross-petition, seeking the adjudication of its blanket lien against Lots 3 and 4, is not germane to plaintiff's petition and does not confer any jurisdiction on the court over Lot 3, so that its answer may not strengthen the position of the Badger Company. (d) The statute giving the right of "blanket lien" merely affords a claimant an "option" or "permission" to file one lien claim instead of several, and does not alter the fundamental concept of a mechanic's lien as a claim against a particular improvement and the land appurtenant thereto. Sec. 3189, R.S. 1929; Walden v. Robertson, 120 Mo. 38, 25 S.W. 349; Kick v. Doerste, 45 Mo. App. 134; Bickell v. Roeder, 81 Mo. App. 652; Aimee Co. v. Haller, 128 Mo. App. 72, 106 S.W. 588; Sec. 3156, R.S. 1929. (e) Such a "blanket lien" is not indivisible, but is a lien against each building, or part, or all of them, and there is nothing in the statutes prohibiting the enforcement of such a lien claim, against the several tracts covered by it, in separate proceedings. Coen v. Hoffman, 188 Mo. App. 311, 175 S.W. 103. (f) The rule against "splitting demands" is not applied in mechanic's lien cases, so as to prejudice the enforcement of a valid lien claim under the statutes. Aimee Realty Co. v. Haller, 128 Mo. App. 72, 106 S.W. 588; Kick v. Doerste, 45 Mo. App. 134; Christopher & Simpson Co. v. Kelly, 91 Mo. App. 93. (g) The Stewart Sand Company should have proceeded by a separate suit to enforce its lien claim against Lot 3. Carr-Cullen Co. v. Cooper, 144 Minn. 380, 175 N.W. 696; Waters v. Gallemore, 41 S.W. (2d) 870. (h) The Stewart Sand Company could not regard this suit as involving any of its rights, except as to Lot 4. Jewett v. Iowa Land Co., 67 N.W. 639. (i) Even conceding for the sake of argument that the Stewart Sand Company's answer and cross-petition was proper in asking for the enforcement of its lien as against Lot 3 and Lot 4, such admission would not render sufficient the second count of the Badger answer and cross-petition seeking a separate lien against Lot 3. (j) When a statute creates a new right and prescribes the remedy, the remedy prescribed is preclusive and must be followed. Stanton v. Thompson, 234 Mo. 7, 136 S.W. 698. (k) Mechanic's liens depend for their efficacy, not only upon the furnishing of materials or labor under a contract referable to ownership, and upon the filing of a proper lien statement in proper time, but also upon proper proceedings under the statutes for their enforcement and unless these proceedings have been taken and prosecuted to effect, the lien is a nullity. Hydraulic Press Brick Co. v. Bormans, 19 Mo. App. 664; Springfield Planing Mill Co. v. Krebs, 196 Mo. App. 432, 193 S.W. 622; Goodner v. Abstract & Guaranty Co., 314 Mo. 155, 282 S.W. 699; Realty Savs. & Inv. Co. v. Washington Sav. & Bldg. Assn., 63 S.W. (2d) 170. (1) Such proceeding could only consist of the filing of an original suit on the lien claim, or in the intervention in an equitable suit, previously commenced for the determination of all lien claims against the particular property covered by the lien claim. Art. III, Ch. 25, Statutes. (2) The court erred in holding that the Badger Company lien claim was prior and superior to the mortgage...

To continue reading

Request your trial
7 practice notes
  • Hatcher v. Hall, No. 7482
    • United States
    • Court of Appeal of Missouri (US)
    • July 13, 1956
    ...Golden v. National Utilities Co., 356 Mo. 84, 93, 201 S.W.2d 292, 297; Lee & Boutell Co. v. C. A. Brockett Cement Co., 341 Mo. 95, 116, 106 S.W.2d 451, 460; Crane v. Liberty Foundry Co., 322 Mo. 592, 617, 17 S.W.2d 945, 957; Weed v. American Car & Foundry Co., 322 Mo. 137, 145, 14 S.W.2d 65......
  • Lewis v. Gray, No. 39991.
    • United States
    • Missouri Supreme Court
    • April 21, 1947
    ...103 Mo. 402, 15 S.W. 543; Cooper v. Newell, 263 Mo. 190, 172 S.W. 326; Lee & Boutell Co. v. C.A. Brockett Cement Co. 341 Mo. 95, 116, 106 S.W. 2d 451, [3] Error is charged in decreeing the title in Bell and decreeing that Gray had no right, title or interest other than the lien rights menti......
  • Hertel Elec. Co. v. Gabriel, No. 7452
    • United States
    • Court of Appeal of Missouri (US)
    • June 7, 1956
    ...Lumber Co. v. Harris, 131 Mo.App. 94, 103, 110 S.W. 609, 611. See also Lee & Boutell Co. v. C. A. Brockett Cement Co., 341 Mo. 95, 112, 106 S.W.2d 451, 457(3); O'Leary v. Roe, 45 Page 99 Mo.App. 567, 572; Jodd v. Duncan, 9 Mo.App. 417, 420. (All statutory references are to RSMo 1949, V.A.M.......
  • General Theatrical Enterprises v. Lyris, No. 25117.
    • United States
    • Court of Appeal of Missouri (US)
    • October 3, 1939
    ...of the contents of the recorded lease. He relies on the rule announced in Lee & Boutell Co. v. C. A. Brookett Cement Co., 341 Mo. 95, 106 S.W.2d 451, that a purchaser is charged with actual notice where he is in possession of sufficient facts to put a prudent person upon inquiry. He insists......
  • Request a trial to view additional results
7 cases
  • Hatcher v. Hall, No. 7482
    • United States
    • Court of Appeal of Missouri (US)
    • July 13, 1956
    ...Golden v. National Utilities Co., 356 Mo. 84, 93, 201 S.W.2d 292, 297; Lee & Boutell Co. v. C. A. Brockett Cement Co., 341 Mo. 95, 116, 106 S.W.2d 451, 460; Crane v. Liberty Foundry Co., 322 Mo. 592, 617, 17 S.W.2d 945, 957; Weed v. American Car & Foundry Co., 322 Mo. 137, 145, 14 S.W.2d 65......
  • Lewis v. Gray, No. 39991.
    • United States
    • Missouri Supreme Court
    • April 21, 1947
    ...103 Mo. 402, 15 S.W. 543; Cooper v. Newell, 263 Mo. 190, 172 S.W. 326; Lee & Boutell Co. v. C.A. Brockett Cement Co. 341 Mo. 95, 116, 106 S.W. 2d 451, [3] Error is charged in decreeing the title in Bell and decreeing that Gray had no right, title or interest other than the lien rights menti......
  • Hertel Elec. Co. v. Gabriel, No. 7452
    • United States
    • Court of Appeal of Missouri (US)
    • June 7, 1956
    ...Lumber Co. v. Harris, 131 Mo.App. 94, 103, 110 S.W. 609, 611. See also Lee & Boutell Co. v. C. A. Brockett Cement Co., 341 Mo. 95, 112, 106 S.W.2d 451, 457(3); O'Leary v. Roe, 45 Page 99 Mo.App. 567, 572; Jodd v. Duncan, 9 Mo.App. 417, 420. (All statutory references are to RSMo 1949, V.A.M.......
  • General Theatrical Enterprises v. Lyris, No. 25117.
    • United States
    • Court of Appeal of Missouri (US)
    • October 3, 1939
    ...of the contents of the recorded lease. He relies on the rule announced in Lee & Boutell Co. v. C. A. Brookett Cement Co., 341 Mo. 95, 106 S.W.2d 451, that a purchaser is charged with actual notice where he is in possession of sufficient facts to put a prudent person upon inquiry. He insists......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT