Reilly v. Hudson

• Decision Date: 31 January 1876
• Citation: 62 Mo. 383
• Parties: ROBERT J. REILLY, Appellant, v. BENJAMIN F. HUDSON, et al., Respondents.
• Court: Missouri Supreme Court

62 Mo. 383

ROBERT J. REILLY, Appellant,

v.BENJAMIN F. HUDSON, et al., Respondents.

Supreme Court of Missouri.

January Term, 1876.

Appeal from St. Louis Circuit Court.E. T. Farish, for Appellant, contended, among other things, that the lien law (see especially §§ 3, 7) had reference only to new buildings and improvements, and gives preference to the lien holder over all incumbrances which may attach subsequent to the commencement of such building or improvements.

M. Hilton, for Respondent, Mary Dickey, cited Holzhour vs. Meer, 59 Mo., 434; Wagn. Stat., ch. 88, Art. 3, § 1, Mechanics' Liens; Graves vs. Pierce, 53 Mo., 429; 2 Kent Com., 343; Bush vs. Baxter, 3 Mo., 207; Am. Fire Ins. Co. vs. Pringle, 2 Serg. & Rawle, 138, 140; Dixon vs. LaForge, 1 E. D. Smith, 722-725; Stine vs. Austin, 9 Mo., 558; Harris vs. Thompson, 36 Mo., 450; Allen vs. Sales, 56 Mo., 28-38; Hanser vs. Hoffman, 32 Mo., 334-340; Williams vs. Porter, 51 Mo., 441-443; Schaeffer vs. Lohman, 34 Mo., 68-73; Wagn. Stat., ch. 88, § 9; Vito Viti vs. Dixon, 12 Mo., 479-484; Dubois vs. Wilson, 21 Mo., 213, 214; Douglas Jr. vs. St. Louis Zinc Co., 56 Mo., 338-402; Kuhlemann vs. Schuler, 35 Mo., 142, 146; St. Bt. Mary Blane vs. Beehler, 12 Mo., 477-479 Wagn. Stat., ch. 88, §§ 1, 19, 22; Williams vs. Chapman, 17 Ill., 423, 426; Dogan vs. Brown, 11 Ill., 519-527; Gaty vs. Casey, 15 Ill., 19; Clifton vs. Foster, Assn., 3 Bank'cy, 162; In re J. M. Coulter in Bankruptcy, 3 Chicago Leg. News, 377; Page vs. Hill, 11 Mo., 149-166; Anschultz vs. McClelland, 5 Watts, 487-492; Groner vs. Smith, 49 Mo., 324; Cabell vs. Grubbs, 48 Mo., 358; Draper vs. Bryson, 17 Mo., 71.

Lee & Adams, for Respondent Hudson.

SHERWOOD, Judge, delivered the opinion of the court.

Action of ejectment for a house and lot on Howard, near Tenth street, in the city of St. Louis. Walter P. Billings owned the premises in March, 1869, and in the following May he employed one Greenwood to put up an ordinary cooking range in the dwelling in question, then a house some four or five years old. This work Greenwood did, putting up the range in the basement, by building a foundation of, and setting it in, brick, which was so built as to surround the ange and extend to the wall of the dwelling. In July following, Billings, to secure a debt of $4,000 to Mrs. Perry, conveyed the premises to her trustees, Bernard J. Reilly and A. N. Sterling. This deed was recorded in the next month thereafter.

In October of the same year, Greenwood filed his lien, and brought suit for its enforcement in the November of the same year, making Billings, the trustees and the cestui que trust, parties defendant. His petition contained the usual allegations, and among them it was alleged that the cooking range “was sold and delivered to, and set up for, said Billings, in and to be used in, and as a fixture of, and was so used by said Billings in, a certain brick house,” etc.

The answers of the defendants put in issue the chief allegations of the petition. Subsequently, however, by stipulation filed, the parties agreed to let judgment go against Billings for the amount sued for, as well as a special judgment against the premises; but execution to be stayed for four months.

Judgment, as stipulated, was accordingly entered, containing all necessary recitals, referring to the stipulation, and describing the various interests of the defendants in the property, and providing that if no sufficient property of Billings could be found, to satisfy the judgment, that the residue be levied out of the premises charged with the lien. After the expiration of the period agreed on, execution issued against Billings in conformity to the judgment, was returned unsatisfied, and under an alias execution the property in suit was sold, and the defendant, Mrs. Dickey, became the purchaser, receiving and having recorded the sheriff's deed therefor.

The sale took place in June, 1872. In the next October thereafter, Bernard J. Reilly, one of the trustees, conveyed the property to one Wheeler, who in turn conveyed it to plaintiff. Mrs. Dickey, after her purchase and the conveyance to her, successfully instituted proceedings for possession against Billings' tenant, the defendant Hudson, who thereupon attorned to her.

The lien given by the statute attaches as soon as the work is begun (Houck Liens, § 157), and when made perfect in the mode pointed out by law, has preference to any prior lien on the land on which the improvements are put, and is to be preferred to all incumbrances attaching to the buildings subsequent to the commencement of such improvements. (Wagn. Stat., 908, 909, §§ 3, 7.)

As above seen, the lien in favor of Greenwood attached before that created by the deed of trust, and as a matter of course must have conceded to it its statutory priority. The purchaser at the execution sale consequently bought the property as free from the incumbrance created by the...