Major v. McVey

• Decision Date: 02 June 1936
• Docket Number: No. 23700.,23700.
• Parties: MAJOR v. McVEY et al.
• Court: Missouri Court of Appeals

94 S.W.2d 1122

MAJOR v. McVEY et al.

No. 23700.

St. Louis Court of Appeals. Missouri.

June 2, 1936.

Appeal from Circuit Court, St. Louis County; Julius R. Nolte, Judge.

"Not to be published in State Reports."

Suit by Alex H. Major against Dorothy L. McVey and others. From an adverse judgment, plaintiff appeals.

Reversed and remanded, with directions.

R. M. Nichols and Frank E. Doyle, both of St. Louis, for appellant.

C. R. Hamilton and Alva C. Trueblood, both of St. Louis, for respondents.

HOSTETTER, Presiding Judge.

This is a suit whereby the plaintiff seeks to establish a mechanic's lien, aggregating the sum of $4,086, on the northern part of lot 2 in block 1 of "East Ashby," known as 2641 Marion avenue in St. Louis county, Mo.

The mechanic's lien was filed in the office of the circuit clerk of St. Louis county on December 7, 1931. The suit to enforce the lien was begun on February 2, 1932, in the circuit court of St. Louis county. The mechanic's lien claim, as well as the amended petition, upon which the case was tried, were both in conventional form.

In the petition plaintiff asked for a personal judgment against defendants Dorothy L. McVey, Christian R. Miltenberger, Alex Miltenberger, trustee, and Andrew R. Scheibley, and also asked that the judgment be declared as a special lien on the property and to be prior to the lien of a certain deed of trust dated October 7, 1925, made by George H. Field and Edith V. Field, his wife, to Alex Miltenberger, trustee, to secure the payment of the principal note therein described of $5,000, and interest notes, payable to George R. Fishwick, the party of the third part; he being a straw party.

Defendant Alex Miltenberger, trustee, filed an answer consisting of a general denial.

Defendant Christian R. Miltenberger, who was engaged in the real estate business, also filed an answer, being a general denial.

Andrew R. Scheibley, who had been originally sued under the name of John Doe, by leave of court entered his appearance on January 6, 1934, as the owner of said notes and deed of trust and filed his answer, which contained, first, a general denial, followed by allegations to the effect that he was the owner of said notes and deed of trust and that on default in the payment of said notes, at his request, the trustee in said deed of trust sold the property at public vendue, in accord with the terms prescribed, on December 7, 1931, and he (Andrew R. Scheibley) purchased the property and received a deed from the trustee, and thus became the owner of the said real estate and improvements; and set up that as the deed of trust was given long before the alleged improvements were made by plaintiff, that it was a prior and paramount lien and that his title to same was free and clear of plaintiff's claim, and asked the court to so hold.

Dorothy L. McVey failed to file any answer or other pleading.

The testimony disclosed that Dorothy L. McVey acquired the equity of redemption to this property by a quitclaim deed from Missouri Mortgage Security Corporation, dated May 7, 1931, and duly recorded, and, while being the owner of the equity of redemption, contracted with plaintiff to make the improvements set up in his mechanic's lien claim. Labor was begun and materials furnished by plaintiff for the improvements on the property and the work was completed on October 7, 1931.

The testimony tended to show that Christian R. Miltenberger had negotiated the original loan to George H. Field and wife on the 7th day of October, 1925, and sold the notes and deed of trust on the property to Andrew R. Scheibley the following day, to wit, October 8, 1925; and that defendant Andrew R. Scheibley owned the notes and deed of trust ever since and until the trustee sold, on account of the past-due notes, on December 7, 1931, at which time Andrew R. Scheibley became the purchaser at the trustee's sale and acquired title to the property as owner; and that he, Christian R. Miltenberger, had collected the interest on the notes for Scheibley up to April, 1931, and kept possession of the deed of trust for much of the time for Mr. Scheibley.

The suit was brought on the theory that Christian R. Miltenberger was the agent of Andrew R. Scheibley, the ostensible owner of the notes and deed of trust, and that he agreed for, and on behalf of, Andrew R. Scheibley, that the improvements made by plaintiff should be made for the benefit of the property and the owner of the deed of trust, but he never did and never would disclose who was the owner of the deed of trust.

The case was tried as an action at law by the court without the intervention of a jury, which resulted in a finding and judgment rendered by the court on May 7, 1934, in favor of the plaintiff and against defendant Dorothy L. McVey, in the sum of $4,086, plus $858.06 interest, making the total judgment against her $4,944.06, together with costs. Defendant Dorothy L. McVey did not appeal from the personal judgment rendered against her. The finding and judgment of the trial court was in favor of defendants Christian R. Miltenberger, Alex Miltenberger, trustee, and Andrew R. Scheibley, and that plaintiff had failed to establish a mechanic's lien against the property described in the petition. Thereupon, plaintiff, in due time, filed his motion for a new trial, which being overruled, he thereupon perfected his appeal and brings the cause to this court for review.

Section 3182, R.S.Mo.1929 (Mo.St.Ann. § 3182, p. 5012), reads as follows: "Equitable action not to apply, when. — This equitable action shall not apply to instances in which there is only one mechanic's lien claimed against the property and any of it, but in any suit thereon the court shall determine the respective priorities as between such mechanic's lien and any other lien or encumbrance and enforce the same accordingly."

Notwithstanding the provisions of said section 3182, our courts hold that where the determination of the question of priority between a lone mechanic's lien claim and any other lien arises, to that extent the case becomes one in equity. Coerver v. Crescent Lead & Zinc Corp., 315 Mo. 276, loc. cit. 285, 286 S.W. 3; Huggins v. Hill (Mo. Sup.) 236 S.W. 1051, loc. cit. 1053; Lyvers v. Rutherford (Mo.App.) 80 S.W.(2d) 729, loc. cit. 732.

It will be noted in the instant case that in the petition the plaintiff claims priority for his mechanic's lien over the pre-existing deed of trust and the answer of defendant Scheibley shows that he claims priority of the deed of trust over the mechanic's lien claim of the plaintiff. Consequently, instead of being a law case, it is really an equity case under these holdings.

There was some testimony that the property in controversy, after having been improved by plaintiff, was reasonably worth from $12,000 to $15,000. It was bid in by defendant Scheibley, at the trustee's sale under the deed of trust, at $5,500. The original loan, which was dated October 7, 1925, was renewed for three years in 1928, and thereafter it was not due until October 7, 1931.

There was also testimony to the effect that Christian R. Miltenberger had seen the improvements being put on the property at different times during the progress of the work, and that he had discussed the improvements with the owner, Dorothy L. McVey, several times, and had approved the work, but that later, he called up by phone and told her that the concrete block wall did not look right and advised that the workmen should tuckpoint the wall later; that prior thereto he had agreed with her to extend the loan for three years; that she had relied upon the extension of the loan; that he said he was sole representative of the owner of the deed of...