May v. Mode

• Decision Date: 30 November 1909
• Parties: MAY v. MODE et al.
• Court: Missouri Court of Appeals

123 S.W. 523

MAY v. MODE et al.

St. Louis Court of Appeals. Missouri.

November 30, 1909.

1. MECHANICS' LIENS (§ 198) — PRIORITY — NOTICE OF LIEN — EXTRINSIC EVIDENCE.

The date of furnishing materials for a building as given in the notice of lien therefor cannot, by extrinsic evidence, be carried back to a prior date so as to give the lien priority over another lien on the premises.

2. MORTGAGES (§ 151) — PRIORITY OF LIEN — MORTGAGE AND CONTRACTOR'S LIENS.

Rev. St. 1899, § 4205 (Ann. St. 1906, p. 2288), provides that the lien for work and materials for improvements on land shall attach to the building for which the material was furnished or the work done in preference to a prior lien or mortgage on the land. Section 4209 (page 2300) provides that the lien "shall be preferred to all other incumbrances which may be attached to or on said building * * * or other improvements, or the ground, or either of them, subsequent to the commencement of such building or improvements." Held that, where a mortgage was placed on land after work on an unfinished building thereon had ceased, the lien of the contractor who subsequently finished the building is subject to such mortgage both as to the land and the building.

Appeal from St. Louis Circuit Court; Chas. Claflin Allen, Judge.

Action by William May against Kate Mode and others. Plaintiff had judgment, and defendants appeal. Reversed.

This case was submitted to the circuit court on an agreed statement of facts, as follows: "For the purposes of this case it is agreed that defendant Mode is the owner in fee of the real estate described in plaintiff's petition. The lot was purchased by her from defendant Fisher about September 27, 1905, but delivery of the deed from Fisher to Mode was not made until May 22, 1906. Defendant Mode arranged for the building of two flats on said lot and built said flats, which are known as No. 1155-1157 North Euclid avenue, obtaining funds therefor from defendant Fisher. On May 22, 1906, the deed to this property was delivered by Fisher to Mode, and at the same time Mode executed and delivered to defendant Fisher as trustee for defendant Robinson her certain promissory note for $6,000, due in three years, and semi-annual interest notes and a deed of trust conveying the same real estate as security therefor. Mode was unmarried, and the deed of trust was in the usual form, with usual provisions. This deed and this deed of trust were duly recorded in the office of the recorder of deeds of the city of St. Louis on the 29th day of May, 1906. The said $6,000 note and the interest notes are now owned by defendant Fisher, and are unpaid. The building of the above-mentioned flats on this property was commenced by defendant Mode in the fall of 1905, and considerable progress had been made in the construction thereof by May 22, 1906. On this last-mentioned date, however, which was the date upon which defendant Fisher delivered the deed to defendant Mode, and defendant Mode executed the above-mentioned deed of trust to defendant Fisher, work had ceased on the buildings on said lots, things had come to a stand, and the contractor had abandoned the job. The roof was on, brickwork, stonework, plastering, etc., were done. There was trouble about funds to do the finishing, and the contractor refused to go on with it, and did not further proceed therewith thereafter. The $6,000 which was obtained with the loan under the deed of trust was used by Mode to pay for the ground and the bills of contractors and others, and all claims against said lot or building outstanding on the 29th day of May, 1906, were fully adjusted and paid. Thereafter, about July 10, 1906, defendant Mode executed a written power of attorney to one Lindsay, a friend of Mode's, authorizing him to contract on her behalf, for the work necessary to be done in order to complete said buildings, and the work was then commenced, said Lindsay agreeing with Mode that he would pay for the completion of said buildings in the first instance out of his own means as a loan or advancement to Mode. Thereupon, on October 27, 1906, and again on November 7, 1906, Lindsay, as Mode's agent, contracted with plaintiff, and on the 28th day of November, 1906, he contracted with plaintiff's assignor to furnish certain materials for and do certain work on said buildings, the particulars of which and the values thereof are set forth in the testimony of William May and R. G. Hopper, introduced by plaintiff. Said Lindsay died during the progress of his undertaking, and did not furnish any part of the money he had agreed to advance; nor has Mode paid plaintiff anything. Plaintiff and plaintiff's assignor, as original contractors, filed their separate accounts and statements within six months after their contracts were completed in the office of the clerk of the circuit court of the city of St. Louis and secured mechanic's liens therefor on said real estate, and within 90 days thereafter instituted this action to recover. After plaintiff's assignor had duly filed his account and secured his lien, he assigned all his right and interest therein to plaintiff. It is agreed that the contracts under which plaintiff and his assignor did their work were entirely independent and distinct from, any contract, or contracts made at the time the buildings were originally commenced; that such were with Lindsay under such subsequent undertaking at dates stated. It is further agreed that plaintiff is entitled to a personal judgment against defendant Mode and a lien against her interest in the above-mentioned premises for such amount as plaintiff's evidence establishes. The sole question here presented is whether plaintiff's lien has priority over the above-mentioned deed of trust executed on May 22, 1906, by Mode to Fisher — defendants maintaining that plaintiff's lien cannot date back of July 10, 1906." In addition to the facts there set out, it appears that in the lien claims filed by plaintiff it is stated that the first item in one of them was October 27, 1906, the first item in the second, November 7, 1906. The trial was before the court, and resulted in a judgment against the defendant Mode for $710.24 on the three claims of plaintiff. The court found as a conclusion of law on the facts "that plaintiff's mechanic's lien for each of the several amounts found to be due him under the respective counts of his petition as aforesaid is a prior lien to the lien of the deed of trust mentioned and described in plaintiff's petition, both as to the land in plaintiff's petition described and as to the buildings and improvements situated thereon, as set forth in plaintiff's petition." The lots are in the city of St. Louis. It was further decreed that a "general and special execution issue in conformity with this judgment, and, if a levy and sale of the above-described property be had under such special execution, then such property shall be sold free and clear from the lien of the above-mentioned deed of trust as aforesaid, and the title to said property shall be vested in the purchaser at such sale free from all lien or incumbrance of such deed of trust."

Chas. L. Moss, for appellants. Robt. L. McLaran, for respondent.

REYNOLDS, P. J. (after stating the facts as above).

1. It is conceded in the argument and briefs of counsel that the lien accounts which were filed by plaintiff state the date of the first commencement of the work and furnishing of material by this plaintiff as October 27th on one account, November 7th on another, and November 28th on the third, all in the year 1906. The lien notices themselves are not set out in the abstract, as they should be, but there is no suggestion in the record that any date prior to the dates here mentioned is set out in the lien notices as filed, or that any right was set up to carry the lien back of those dates to the date of commencement of the building. We must, therefore, assume that these dates mentioned in the lien notices filed as the dates when the materials were first furnished and work first done by this plaintiff and his assignor for the construction of the building are the earliest dates given for the inception of the lien claim. It appears by the agreed statement of facts that these are all subsequent to the date of execution of the mortgage or deed of trust, which, according to the stipulation, was executed and delivered to defendant Fisher as trustee for defendant Robinson on May 22, 1906, and duly recorded the 29th day of the same month. That being so, this case falls within the decision of our Supreme Court in Coe v. Ritter, 86 Mo. 277, as interpreted by that court in the case of Landau v. Cottrill, 159 Mo. 308, 60 S. W. 64. In this latter case the court, commenting on the case of Coe v. Ritter, says: "It is true that in that case the lien was sought to be extended beyond the face of the record by showing by parol evidence that the materials were furnished at an earlier date than the earliest date given in the lien, while in this case a like extension of the lien is sought by showing by parol evidence that the buildings were commenced at an earlier date than the earliest date given in the lien. But the same object is sought to be accomplished, and by the same means; and it would seem that the legal principles announced in that case are just as applicable to the case in hand." It is not meant by the use of the word "parol" that the objection goes to the testimony because it was by parol. The ground of the objection is that the lien account or notice did not in itself furnish or set up any fact which would let in evidence to carry the lien back of the date given in the lien account; the only date given being that on which the first item of work was done or material furnished.

In Bruns v. Braun, 35 Mo. App. 337, Coe v. Ritter, supra, is referred to, and Judge Biggs, who delivered the opinion of this court, after referring to the ruling as announced in Coe v. Ritter, that the...