Masterson v. Roberts

• Decision Date: 21 December 1934
• Citation: 78 S.W.2d 856,336 Mo. 158
• Parties: C. W. Masterson, Appellant, v. Florence Roberts, Jack Roberts, Raymond Roberts, Flora Griffin, Maud Wright, Rosamond Allen, Willa Griffin, Bessie Qurollo, Grace Griffin Cook Schulenberg, Jesse Griffin Skinner, James G. Griffin, A. C. Lucas, S. J. Thompson, S. J. Porter, Albert M. Ott, Trustee, Fred M. Shelton and J. C. Shelton, A. L. Wilson Lumber Company, Oscar G. Bessmer, Martin-Welch Hardware & Plumbing Company, a Corporation
• Court: Missouri Supreme Court

78 S.W.2d 856

336 Mo. 158

C. W. Masterson, Appellant, v. Florence Roberts, Jack Roberts, Raymond Roberts, Flora Griffin, Maud Wright, Rosamond Allen, Willa Griffin, Bessie Qurollo, Grace Griffin Cook Schulenberg, Jesse Griffin Skinner, James G. Griffin, A. C. Lucas, S. J. Thompson, S. J. Porter, Albert M. Ott, Trustee, Fred M. Shelton and J. C. Shelton, A. L. Wilson Lumber Company, Oscar G. Bessmer, Martin-Welch Hardware & Plumbing Company, a Corporation

Supreme Court of Missouri

December 21, 1934

Appeal from Jackson Circuit Court; Hon. C. Jasper Bell Judge.

Affirmed.

E C. Hamilton for appellants.

(1) The right of these appellants to mechanics' liens is clearly authorized by statute. Sec. 7220, R. S. 1919, now Sec. 3160 R. S. 1929; 40 C. J. 63, sec. 28. (2) Section 3160, Revised Statutes 1929, is not violative of Section 15, Article II, of the Constitution of Missouri, nor is it violative of Section 30, Article II, but on the other hand a most liberal construction of mechanics' liens statutes is indulged by this as well as by all of the appellate courts. De Witt v. Smith, 63 Mo. 266. (3) The character of improvement made, as contemplated by and specified in the lease itself was a substantial benefit to the estate and the contractors are entitled to liens against the estate of the lessee, and also against the fee. 40 C. J. 63, sec. 3; Dougherty Moss Lumber Co. v. Churchill, 114 Mo.App. 584; Allen Estate Assn. v. Boeke, 300 Mo. 587; Carey Co. v. Construction Co., 185 Mo.App. 349; Hardware Co. v. Churchill, 126 Mo.App. 467. (4) The contention of the respondent heirs of James G. Griffin that the improvements in question did not enhance the value of the estate, is untenable. (5) One who owns either a legal or equitable estate in land is such an owner or proprietor, within the meaning of the statute, as may bind the property with a mechanic's lien, especially where contractor is without notice of any adverse claim of title. Lumber Co. v. Clark, 172 Mo. 595; Lumber Co. v. Harris, 131 Mo.App. 104; Reinhart v. Crescent B. & L. Assn., 56 Mo.App. 495; O'Donnel v. Mathews, 284 S.W. 206. (6) The defendant life tenant, James G. Griffin, in the leasing of said property, was acting as agent of his eight children, the remaindermen, they having acquiesced in the improvements and betterments inuring to the fee. Hull v. Jones, 69 Mo. 587. (7) The fact that the owner or proprietor has lost his interest in the property either by default or death, can make no difference in the enforcement of the lien. Sawyer & Austin Lumber Co. v. Clark, 172 Mo. 596.

Burrus & Burrus for respondents.

(1) Section 3160, relied upon by appellants to give a mechanic or materialman a lien by virtue of improvement contracted for by lessee or licensee, and without a contract with the owner of the fee, is in contravention of Section 30, Article II of the Constitution of Missouri. Sec. 3160, R. S. 1929; State ex rel. Harrington v. Trimble, 31 S.W.2d 783; Powell v. Reidinger, 228 S.W. 503; Rogers Foundry Co. v. Squires, 297 S.W. 472; Sec. 30, Art. II, Mo. Const.; 18 R. C. L. 876, sec. 4; 18 R. C. L. 894, sec. 22; Wyckoff v. Southern Hotel Co., 24 Mo.App. 391; McClain v. Williams, 76 N.W. 931; Van Laar v. Marchesini, 175 N.W. 457; Jensen v. Wilcox Lbr. Co., 129 N.E. 135; Berkin v. Healy, 158 P. 1022; Santa Cruz Rock Paving Co. v. Lyons, 48 P. 1097; Chears Floor & Screen Co. v. Gidden, 131 So. 426; Spry Lbr. Co. v. Sault, etc., Co. 43 N.W. 778; Meyer v. Berlandi, 40 N.W. 513; Randolph v. Builders' & Painters' Supply Co., 17 So. 721; Stimson Mill Co. v. Braun, 68 P. 482; Badger Lumber Co. v. Pugsley, 61 S.W.2d 428. (2) Act of life tenant cannot bind the interest of the remaindermen with a mechanic's lien. Sec. 3160, R. S. 1929; Mo. Central Bldg. & Loan Assn. v. Eveler, 237 Mo. 679, 141 S.W. 878; Frederick, Jr., v. Frederick's Admr., 102 S.W. 859, 31 Ky. Law Rep. 584, 13 L. R. A. (N. S.) 514; Caldwell v. Jacob, 22 S.W. 436, 27 S.W. 86, 16 Ky. Law Rep. 21; Henry v. Brown, 99 Ky. 13, 34 S.W. 710; 16 Cyc. 631; Schorr v. Carter, 120 Mo. 409, 25 S.W. 538; 40 C. J. 108; Williams v. Vanderbilt, 145 Ill. 238, 34 N.E. 476, 21 L. R. A. 489; Tracy v. Rogers, 69 Ill. 662; Lang v. Everling, 23 N.Y.S. 329; Othinger's Est., 4 Pa. Dist. Ct. 711, 17 Pa. Co. Ct. 244; 18 R. C. L. 885. (3) No agency was ever proven or established to the effect that James G. Griffin was the agent for his children, son-in-law or grandchild, remaindermen, in leasing the property, nor did they acquiesce in anything done. Powell v. Reidinger, 234 S.W. 852; Dierks & Sons Lbr. Co. v. Morris, 156 S.W. 79, 170 Mo.App. 212; Ward v. Nolde, 259 Mo. 300, 168 S.W. 596; Weis & Jennett Marble Co. v. Gardiner, 198 Mo.App. 355, 198 S.W. 424; Lumber Co. v. Morris, 170 Mo.App. 216, 156 S.W. 75; Dougherty-Moss Lumber Co. v. Churchill, 114 Mo.App. 586, 90 S.W. 405; Marty v. Amusement Co., 173 Mo.App. 707, 160 S.W. 26; McGuinn v. Mines & Milling Co., 160 Mo.App. 28, 141 S.W. 467; Curtin-Clark Hardware Co. v. Churchill, 126 Mo.App. 462, 104 S.W. 476; Carey Co. v. Construction Co., 185 Mo.App. 346, 170 S.W. 449; Carroll Contracting Co. v. Newsome, 201 Mo.App. 129, 210 S.W. 114. (4) The contention by the life tenant and remaindermen that the improvements in question did not enhance the value of the estate is germane and in equity ought to be considered in arriving at conclusion as to whether a lien should be established. 40 C. J. 44, sec. (5) B; 40 C. J. 63, sec. 3; Allen Estate Assn. v. Boeke, 300 Mo. 587; Dougherty Moss Lumber Co. v. Churchill, 114 Mo.App. 584; Carey v. Construction Co., 185 Mo.App. 349; Hardware Co. v. Churchill, 126 Mo.App. 467; Dierks Lumber Co. v. Morris, 156 S.W. 77, 170 Mo.App. 212. (5) Claimants are not entitled to a lien on the improvements on land because: (a) The original lien paper fails to name all of the owners, in that "Jack Roberts" and "Raymond Roberts" were omitted. Sec. 3161, R. S. 1929; Banner Lumber Co. v. Robson, 168 S.W. 244, 182 Mo.App. 611; Sec. 3165, R. S. 1929. (b) Because "Grace Griffin Cook Schulenberg" was not mentioned in the original lien paper. (c) Because the original lien paper fails to describe the "property" that is the building "so near as to identify it." Hydraulic Press Brick Co. v. Schlingmann, 88 Mo.App. 21. (6) Appellants,' A. L. Wilson Lumber Company, Martin-Welch Hardware & Plumbing Company, and Oscar G. Bessmer, petitions are fatally defective in that they fail to name anyone as the owners of the land or the building. Sec. 3185, R. S. 1929; 21 C. J. 507, sec. 612; 21 C. J. 507; 49 C. J. 316, sec. 387; Sec. 3164, R. S. 1929. (7) A lien will not be established against a building or the fee unless all the owners authorize the work or furnishing of the material. Badger Lumber Co. v. Pugsley, 61 S.W.2d 425. (8) There cannot be a lien against anything except the building and the fee title cannot in any event be subjected. Martin-Welch Hdw. & Plbg. Co. v. Moore, 16 S.W.2d 667; Cochran v. Johnson, 25 S.W.2d 130; Sec. 3160, R. S. 1929. (9) Masterson is not entitled to a lien because there is no evidence in the bill of exceptions to show his petition was filed within ninety days from the date of filing the lien account. Sec. 3172, R. S. 1929. (10) Martin-Welch Hardware & Plumbing Company, Wilson Lumber Company and Oscar G. Bessmer are not entitled to a lien because there is no evidence in the bill of exceptions to show their petition was filed within ninety days from date of filing lien claims, nor within time to answer as provided in Section 3187, Revised Statutes 1929. Sec. 3187, R. S. 1929. (11) Masterson is not entitled to a lien because he waived any right he might of had by accepting and retaining the promissory note of the primary debtors and failing to sustain burden of reliance on the credit of the building for a lien. Big Four Implement Co. v. Chesney, 223 S.W. 945; House Wrecking Salvage & Lumber Co. v. Gartrell, 204 S.W. 52.

Hyde, C. Ferguson and Sturgis, CC., concur.

OPINION

HYDE

This is an action in equity brought under Section 3180, Revised Statutes 1929, to determine the rights, of mechanic's lien claimants and others, in a building and lots in the city of Independence. Plaintiff was a contractor who altered the building. Defendant James G. Griffin had a life estate in the property under the will of his deceased wife, and his children, entitled to the remainder in fee under their mother's will, are also defendants. The lessees of the building, who contracted for the work, the trustee and beneficiaries of the first mortgage on the property, and the materialmen who furnished material which was used in the alteration of the building, are the other defendants. The petition alleged that the contract for alteration of the building was made with the lessees of the building with the consent and approval of all of the owners thereof. The answers of the defendants who furnished material claimed liens, likewise, against all the property. The answer of the life tenant and the owners of the remainder in fee was a general denial and also set up that Section 3160, Revised Statutes 1929, which purports to give a lien on leased property and buildings thereon for improvements, alterations or repairs done under contract with the lessee, was unconstitutional, in violation of Sections 15 and 30 of Article II of our Constitution. This is the basis of our jurisdiction as the liens claimed were in the aggregate far below our jurisdictional amount. The court in its decree found that the mortgage was the first lien (this was never questioned); that the accounts of the contractor and materialmen were correct and entered judgment against one of the lessees therefor, the other having been adjudicated a bankrupt; and further found "that said items do not constitute a mechanic's lien against the...