Page v. Bettes

• Decision Date: 13 April 1885
• Parties: JOHN W. PAGE, Appellant, v. IRA J. BETTES ET AL., Respondents.
• Court: Kansas Court of Appeals

17 Mo.App. 366

JOHN W. PAGE, Appellant, v. IRA J. BETTES ET AL., Respondents.

Court of Appeals of Missouri, Kansas City.

April 13, 1885

APPEAL from Johnson Circuit Court, HON. NOAH M. GIVAN, Judge.

Reversed and remanded with directions.

Statement of case by the court.

This is an action to enforce a mechanic's lien on a house and lot situate in the town of Holden, Johnson county. The petition states, substantially, that in August, 1880, the defendant Ira J. Bettes, was the owner of the house and lot in question, and has ever since continued in possession thereof. That at said date first named he made a contract with the plaintiff whereby plaintiff was to furnish the necessary material and perform the labor in repairing said dwelling house, for a reasonable compensation, to be paid when the same was completed; that plaintiff entered upon the performance of said contract, and completed the same on the 22d day of February, 1882; that the reasonable value of said labor and materials was $188.75; and that afterwards, to wit on the 28th day of March, 1882, the said Bettes having failed to pay for the same, the plaintiff duly made out the account and filed the same with the circuit clerk for the purpose of securing a mechanic's lien on said property. The said account so filed is as follows:

" 1880.

September. To stone furnished for a new foundation $19 00

October To labor, building new foundation 40 00

October To labor, raising house 8 00

1881.

January. To lumber furnished to repair house 30 00

March. To lumber furnished to repair house 15 00

July. To labor, carpenter work, repairing house 15 00

September. To labor, carpenter work, repairing house 18 00

November. To labor, carpenter work, repairing house 10 00

December. To labor, hardware furnished, repairing house 8 50

December. 24th. To blinds for windows, repairing house 9 24

1882.

February. To carpenter work repairing house 20 00

Total

The petition then avers that the defendants, J. P. Orr and John J. Cockrell, subsequently became the purchasers of said property at an execution sale against said Bettes, which purchase was subject to plaintiff's mechanic's lien. The usual prayer was made for judgment and the enforcement of the mechanic's lien. Bettes made no answer. The defendants, Orr and Cockrell, made answer tendering the general issue.

The plaintiff on the trial, had before the court sitting as a jury, made proof of the filing of the lien pursuant to statute, of date March 28th, 1882, and also gave evidence tending to prove the facts alleged in the petition, and the work done and the materials furnished as stated in the account. The evidence also tended to show that while the defendant, Ira J. Bettes, did not have a deed to the property, yet he was the equitable owner of it, and was in the occupancy thereof, and was recognized and treated as the owner. Ira J. Bettes stated in his testimony that the title to this property stood in the name of W. H. Bettes & Co., and that he was a member of said firm; but he had long since paid them for the property, and it was ever recognized as his.

Two sheriff's deeds were read in evidence on behalf of defendants, which were sufficiently noted in the opinion,

At the instance of the plaintiff the court gave the following instructions:

" First. If the court, sitting as a jury, shall find from the evidence that the plaintiff contracted with the owner of the premises described in the petition, to furnish the labor and material necessary to repair the house thereon, and all the labor performed or caused to be performed, and material furnished by plaintiff was done and furnished in and about making repairs on said house, which were needed on said house, or were in contemplation of the parties to the contract at the date thereof, then such labor and material are presumed to have been done and furnished under one and the same contract.

Second. The court further declares the law to be, that if it shall find from the evidence in the case that W. H. Bettes & Co. was, prior to the time of the making of the alleged contract between plaintiff and defendant, Ira J. Bettes, the owner of the premises described in the petition, and that, at and prior to the execution of said contract, the defendant, Ira J. Bettes, had paid W. H. Bettes & Co. the purchase money for said premises, then said Ira J. Bettes was the owner thereof within the meaning of section 3172, chap. 47, Revised Statutes of Missouri.

Third. If the court should find from the evidence in the case that the defendants, Orr and Cockrell, on the 18th day of February, 1882, became the owners of the premises described in plaintiff's petition, and that on said day plaintiff had become, and was entitled to a lien for labor performed and material furnished in repairing the dwelling house situate thereon, by virtue of a contract with the owner thereof prior to that time, then it was not necessary for plaintiff to have inserted the names of said Orr and Cockrell in the account required to be filed by section 3170, chapter 47, of the Revised Statutes of Missouri, in order to establish his lien against said premises in the hands of said Orr and Cockrell.

Fourth. If the court should find from the evidence that the labor was performed and the material furnished by plaintiff, charged in his account, under and by virtue of a single contract, then plaintiff is entitled to an indivisible lien, notwithstanding a longer period than six months may have elapsed from the date of said contract to the last act of performance of said contract by him, and notwithstanding that the evidence may show that the services were not performed, nor the material furnished in the exact order, or at the exact time as charged in said account, provided that such labor was performed and such material furnished, and provided that, at no time after date of such contract, did a period of six months intervene between the date of the contract and the commencement by plaintiff to perform his part of said contract, and between the different acts of performance on his part thereafter, and provided plaintiff has otherwise complied with the law in the filing of his account, and the institution of his suit herein."

The plaintiff also asked the following instructions, which the court refused:

" Fifth. If the court should find from the evidence that plaintiff, between the 28th day of October, 1881, and the 18th day of February, 1882, furnished mechanical labor in repairing the dwelling house, situate on the lot of land described in the sheriff's deed read in evidence, under the contract as stated in his petition, and the court should further find from the evidence that plaintiff had no notice of the execution sale recited in said sheriff's deed, at the time of furnishing the material and performing the labor, then said deed would not operate by way of relation to the sale therein, so as to defeat any lien to which plaintiff is otherwise entitled under the mechanic's lien law of this state.

Sixth. The court declares the law to be that the lien of the judgments, recited in the sheriff's deed in evidence to defendants Orr and Cockrell, did not attach until the second and fourth days of March, A. D. 1881, and that a subsequent sale and deed thereunder would not defeat a lien for repairs, made pursuant to a contract prior to said dates, even though part of the work and material may have been furnished and performed subsequent to the attachment of such lien, sale, and execution of the deed thereunder, provided all the work was performed and material furnished under the original contract.

Seventh. The court declares the law to be that the sheriff's deed from H. C. Bettes & Sons, dated October 31st, 1881, and filed for record November 9th, 1881, to the defendants Orr and Cockrell, does not operate to convey any right, title, interest, or estate, that the defendant, Ira J. Bettes, may have had at the date thereof in the property in said deed described."

The court rendered judgment against the defendant, Ira J. Bettes, for the amount of the debt and interest, but found the issues for the defendants, Orr and Cockrell. From this judgment the plaintiff prosecutes this appeal.

SAMUEL P. SPARKS, for the appellant.

I. The plaintiff established by uncontradicted evidence that the material was furnished and labor performed at intervals from September, 1880, to February, 1882, under one contract, and that a period of six months at no time intervened between the different acts of performance.-- Squires v. Fithian, 27 Mo. 134. The plaintiff had six months from the date of the last performance under his contract in which to file notice of his lien.-- Austin v. Stine, 9 Mo. 558; Carson v. Steamboat Hillman, 16 Mo. 256.

II. The lien is given on repairs on an old as well as on the erection of a new structure.-- Reilly v. Hudson, 62 Mo. 383.

III. The fifth and sixth declarations of law asked by plaintiff and refused by the court, declared, in effect, that the sheriff's deed, based upon judgments rendered after plaintiff had entered upon the performance of his contract, would not defeat his lien for labor performed and material furnished under that contract after such sales, and this was error.--Houck on Liens, sect. 142, p. 46, (ed. 1867); Rev. Stat., sect. 3174; Reilly v. Hudson, 62 Mo. 383; Douglas v. St. Louis Zinc Co., 56 Mo. 388. Plaintiff's seventh declaration of law was improperly refused. A deed conveying the interest of H. C. Bettes & Sons, could not operate to convey the interest of Ira J. Bettes.

IV. The finding of the court that the last item for...