Major v. McVey

• Decision Date: 05 May 1939
• Docket Number: No. 24874.,24874.
• Parties: MAJOR v. McVEY et al.
• Court: Missouri Court of Appeals

128 S.W.2d 347

MAJOR v. McVEY et al.

No. 24874.

St. Louis Court of Appeals. Missouri.

May 5, 1939.

Rehearing Denied June 6, 1939.

Appeal from Circuit Court, St. Louis County, Thirteenth Judicial District, Division No. 3; Peter T. Barrett, Judge.

"Not to be reported in State Reports."

Suit by Alex H. Major against Dorothy L. McVey and others to establish a mechanics' lien, to obtain a personal judgment against the defendants, and to have the judgment declared a special lien on property prior to the lien of a deed of trust. From an adverse judgment, the plaintiff appeals.

Affirmed.

Frank E. Doyle, of St. Louis (Elliott W. Major, of St. Louis, of counsel), for appellant.

H. A. & C. R. Hamilton and Alva C. Trueblood, all of St. Louis, for respondents.

HOSTETTER, Presiding Judge.

This is the second appearance by appeal of this case in this Court. The opinion of this Court on the first appeal, handed down on June 2, 1936, will be found at 94 S.W.2d 1122. A rather full statement of the facts in the case was made in that opinion. The case had been tried in the lower court as an action at law, whereas the controversy being between priorities as to a deed of trust and a mechanic's lien claim, it clearly was a suit in equity, and was thus reversed and remanded to be tried as such in the lower court. The case was tried a second time before a different judge than the one who had presided during the first trial. In the interim between the first and second trial two of the principals in this controversy, towit: Christian R. Miltenberger and Andrew R. Scheibley, died and their interests in this second appeal are duly represented by Robert E. Miltenberger, executor of Christian R Miltenberger, deceased, and Delma E. Frueh, administratrix c.t.a. of the estate of Andrew R. Scheibley, deceased.

The facts of the case are substantially as follows:

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, Missouri.

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.

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, as also did Christian R. Miltenberger.

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 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 October 7, 1925, and sold the notes and deed of trust on the property to Andrew R. Scheibley the following day, towit: 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 and notes 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, and that the loan would be extended for another three years, but he never did and never would disclose who was the owner of the deed of trust.

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.

The plaintiff's suit had been filed shortly prior to the sale, after he became aware that there would be no extension of the loan for three years and the trustee making the sale, and Christian R. Miltenberger, were duly served with notice of lis pendens.

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, and 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 trust; that when he advised payment of the interest and taxes he said, "I will then see what I can do about getting the loan renewed"; that she then told him that she had enough invested and if his word was not good the first time it would not be good the second time.

It was also disclosed that she paid $500 to the former owner for the equity of redemption.

J. A. Finninger testified that he had several conversations with Christian R. Miltenberger's office in the year 1930, while he was secretary of the Missouri Mortgage Security Corporation, the then owner of the property; that he told Mr. Miltenberger that Mr. Major was a prospective purchaser.

This witness further testified that the $500 purchase money for the property which the Missouri Mortgage Security Corporation received from Dorothy L. McVey was turned over to Christian R. Miltenberger for past due interest.

Earl Riggle, the foreman on the work of improvements on the property in controversy, testified that he worked there for 21 or 22 weeks; that part of the time 6, 8 or 10 men were working, and part of the time only 2, 3 or 4. He described the improvements made as follows: driveway, walks, retaining wall, tennis court, cement work, well top constructed. Driveway was 125 feet long and 12 feet wide and 8 inches thick. Walks made 4 inches in thickness around both sides of house and to garage and well. Bridge house constructed; also sidewalk 5 feet by 100 feet and 5 to 6 inches thick, and steps and walk to house built. The construction was a first-class job. The house was painted inside and out; porch repaired and new porch built; some old material, about one-eighth, was used in building porch, but the other material used was new. The house was redecorated on inside.

He further testified that Christian R. Miltenberger asked about the painting and the wall and said that he had an interest in the property, but did not say who owned the mortgage; that he saw Christian R. Miltenberger, with two other men, at the job when the work was about half completed.

George R. Fishwick, called on behalf of defendants, testified that he was in the real estate and insurance business, and was in the office of Christian R. Miltenberger until March, 1931; that he was the party named in the notes secured by the deed of trust...