McLaren v. International Real Estate & Imp. Co.

• Decision Date: 28 May 1907
• Citation: 126 Mo. App. 254,102 S.W. 1105
• Parties: McLAREN v. INTERNATIONAL REAL ESTATE & IMP. CO.
• Court: Missouri Court of Appeals

102 S.W. 1105

126 Mo. A. 254

McLAREN v. INTERNATIONAL REAL ESTATE & IMP. CO.

St. Louis Court of Appeals. Missouri.

May 28, 1907.

JUDGMENT — CONCLUSIVENESS OF ADJUDICATION — PERSONS CONCLUDED — CESTUI QUE TRUST—STATUTORY PROVISIONS.

Rev. St. 1899, § 4205 [Ann. St. 1906, p. 2288], provides that a mechanic's lien attaches to the buildings, etc., for which materials were furnished or work done, in preference to any prior lien or incumbrance or mortgage upon the land upon which said buildings, etc., have been erected, and any person enforcing such lien may have the building, etc., sold under execution and the purchaser may remove the same within a reasonable time thereafter. Section 4211 [Ann. St. 1906, p. 2305] provides that in all suits under this article the parties to the contract shall and all other persons interested in the matter in controversy or in the property charged with the lien may be made parties, but such as are not made parties shall not be bound by any such proceedings. Replevin was brought by the purchaser of the improvements on real estate at an execution sale under a judgment establishing a mechanic's lien against the purchaser of the real estate at a sale under deed of trust prior in date to the first act upon which the mechanic's lien was founded. Held that, where the cestui que trust under the trust deed was not made a party to the proceeding to foreclose the mechanic's lien, the judgment in that proceeding and the acts thereunder were not binding upon the purchaser at the foreclosure sale under the trust deed.

Appeal from St. Louis Circuit Court; Walter B. Douglas, Judge.

Action by Robert L. McLaren against the International Real Estate & Improvement Company. From a judgment for defendant, plaintiff appeals. Affirmed.

The action is in replevin for the possession of a two-story brick dwelling house on Blaine avenue, in the city of St. Louis. In December, 1896, the lot on which the house is situated belonged to the Hamilton Building & Investment Company, a corporation. On December 21, 1896, the company executed a deed of trust to Charles F. Vogel, trustee, to secure to Edward H. Fisher a principal note for $4,500 and six semiannual interest notes for $135 each. On February 22, 1897, Fisher assigned, for value, all of said notes to Caroline Weindel. Default was made in the payment of the interest notes, and, on the request of Caroline Weindel, trustee Vogel (as the deed of trust provided he might do) foreclosed the deed of trust by a public sale on July 26, 1898. The defendant, International Real Estate & Improvement Company, a corporation, became the purchaser at the sale and received from Vogel his deed, as trustee, conveying the premises to it. The loan is called a "building loan" in the evidence, and was made to enable the Hamilton Building & Investment Company to erect the house in controversy. The deed of trust and the trustee's deed were immediately put upon record after they were executed, and immediately after making the purchase and receiving the trustee's deed the International Real Estate & Improvement Company, to wit, on July 27, 1898, executed its deed of trust, also recorded, conveying the premises to William Haase, trustee, to secure one principal note for $4,500 and six semiannual interest notes for $135, each payable to Edward H. Fisher, who indorsed all of said notes without recourse. After the loan of $4,500 was effected by the Hamilton Building & Investment Company, it entered into a contract with Richard Morley & Bros. to furnish certain material and lumber for the erection of a building on the lot. Morley Bros. began furnishing the lumber about December 28, 1896, and completed their contract about March 10, 1897. The lumber was not paid for, and on August 20, 1897, Morley Bros. filed a declaration for a lien on the premises, and in due time thereafter commenced their suit in the circuit court of the city of St. Louis against the Hamilton Building & Investment Company, George N. Griffin, trustee, Joseph M. Shortal, Charles F. Vogel, trustee, Edward H. Fisher, George M. Griffin, and Evans R. Darlington to establish and enforce their lien. Judgment by default was rendered in favor of Morley Bros. on May 5, 1898, establishing their lien, and against the Hamilton Building & Investment Company for $1,022.42, and the court found that Morley Bros. had perfected and established their mechanic's lien for said sum against the following described lot (describing the lot on which the house is situated), and it was "ordered, adjudged, and decreed by the court that plaintiff recover of the defendant Hamilton Building & Investment Company the said sum of $1,022.40 found to be due plaintiffs as aforesaid, together with their costs and charges herein expended, and that, if sufficient property of said Hamilton Building & Investment Company cannot be found out of which to make such judgment and costs, that then the residue thereof be levied out of the above-described property charged with said mechanic's lien, and that plaintiffs have execution therefor." In due time an execution was issued on the judgment. No goods or real estate of the Hamilton Building & Investment Company being found whereon to levy the execution, the sheriff levied upon, advertised, and sold the premises described in the judgment and execution. Plaintiff became the purchaser at this sale and received the sheriff's deed conveying to him all the right, title, and interest of defendant in the lot that he might convey under the execution and sale. The defendants objected to the introduction of the sheriff's deed, for the reason Caroline Weindel was not made a party defendant in the suit of Morley Bros. to establish and foreclose their mechanic's lien. The court overruled this objection, but at the close of all the evidence filed the following memorandum opinion, to wit: "The contest in this case is between the purchaser of improvements at an execution sale under a judgment establishing a mechanic's lien, on the one side, and the purchaser of the real estate at a sale under deed of trust prior in date to the first act upon which the mechanic's lien was founded, on the other side. Had the cestui que trust under the deed of trust been made a party to the action to foreclose the mechanic's lien, the title in the plaintiff would have been complete. But the fact is that the cestui que trust was not made a party to that proceeding. The judgment in that proceeding and the acts thereunder are therefore res inter alios acta as to the International...