Richardson v. Koch

• Decision Date: 31 October 1883
• Citation: 81 Mo. 264
• Parties: RICHARDSON v. KOCH et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

81 Mo. 264

RICHARDSON

v.KOCH et al., Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1883.

Error to Morgan Circuit Court.--HON. E. L. EDWARDS, Judge.

REVERSED.

R. F. Walker and Draffen & Williams for plaintiffs in error.

The property was subject to a mechanic's lien. It will be noticed that this building was erected for the express purpose of being used as a mill for crushing and separating metallic ores, and to receive this identical machinery which was necessary for the completion of the building for that purpose. Without this the building would be useless for the objects for which it was intended. The machinery was attached to or connected with the building in the same manner as the machinery in ordinary mills is attached. It was part and parcel of the building itself. The statute gives a lien to the “mechanic or other person who shall furnish any materials, fixtures, engine, boiler or machinery for any building, erection or improvement.” It will be difficult to conceive of the character of the improvement against which such a lien may be enforced for machinery furnished, if not against a mill or manufactory. See 1 R. S. 1879, p. 533, § 3172; Gerard B. Allen & Co. v. The Frumet Mining & Smelting Co., 73 Mo. 688; O'Bryan v. Hanson, 9 Mo. App. 545, 550; Goodin v. Ellardsville Hall Asso'n, 5 Mo. App. 289, 293; Kelly v. Border Mills, 7 Reporter 685; Gray v. Holdship, 17 Serg. & Rawle, 413; Morgan v. Arthurs, 3 Watts (Pa.) 140; Wademan v. Thorp, 5 Watts 115; McGreary v. Osborn, 9 Cal. 119. The fact that the Pennsylvania Mining, Separating & Smelting Company only had a leasehold interest in the land, cannot defeat the lien. There is no difference as to the character of the building or improvement against which the lien can be enforced, where the improvement is made by the owner in fee, and where it is made by the lessee. The only difference is, that in the one case, the land is bound, and in the other, simply the lessee's interest therein; in both cases the building and everything that is part and parcel thereof, is held by the lien. Section 4 of the mechanic's lien law expressly extends the lien to leasehold property. The court below, therefore, committed manifest error in giving the declarations of law asked by the plaintiff numbered 5, 6, 7 and 11, and in refusing those asked by the defendants numbered 1, 2, 3, 4 and 6. See 1 R. S. 1879, § 3175; Smith v. Phelps, 63 Mo. 585; O'Bryan v. Hanson, 9 Mo. App. 550; 11 Cent. Law Jour. 471, part of opinion on p. 472; Hart v. Globe Iron Works, 37 Ohio St. 75; Collins v. Mott, 45 Mo. 100. The case of Collins v. Mott, supra, when properly understood, does not militate against these views. That case does not hold, as seems to be contended by plaintiff, that a mechanic's lien cannot exist for materials, fixtures, engine, boiler and machinery furnished for and put up in a building erected by a lessee upon rented ground. The statute expressly gives such lien. § 4. It was a question of fact whether the annexation was such as to make the machinery part of the house. O'Bryan v. Hanson, 9 Mo. App. 550. The lien judgment cannot be attacked collaterally by plaintiff on the ground that the machinery and building were not fixtures. Reiley v. Hudson, 62 Mo. 383; Allen v. Sales, 56 Mo. 28, 38. The description in and proceedings thereon were sufficient. Oster v. Robeneau, 46 Mo. 595; Kansas City Hotel Co. v. Sauer, 65 Mo. 279. The petition was certainly sufficient after verdict. Gilman v. Hovey, 26 Mo. 280.

Richardson, J. P. Ross, J. R. Edwards and Moore & Williams for defendant in error.

The lien of the attachment dated from the time of the levy, and the sale thereunder relates back to the levy. Huxly v. Harrold, 62 Mo. 516; Hall v. Stevens, 65 Mo. 670. Plaintiff is not bound by the judgments under which defendants claim, and he may contest the validity of the proceedings, not being a party or privy thereto. R. S., § 3180; Houser v. Hoffman, 32 Mo. 335; Schaeffer v. Lohman, 34 Mo. 68; Picot v. Signiago, 27 Mo. 125; Phillips Mech. Liens, §§ 395, 456; Johnson v. Pike, 35 Me. 291; Lambard v. Pike, 33 Me. 141; Raymon v. Ewing, 36 Ill. 328. The petitions in the lien cases do not state the facts necessary to enforce a lien under the statute. It is not averred that there was any contract, either original or otherwise, with any one having any interest or ownership in the land. The allegations as to time are insufficient, and the allegations are otherwise defective. Hetzell v. Langford, 33 Mo. 396; Porter v. Tooke, 35 Mo. 107; Peck v. Ridwell, 6 Mo. App. 551; Fay v. Adams, 8 Mo. App. 566; Phillips Mech. Liens, §§ 362, 358. The buildings, machinery, boiler, engine, separators, crushers, etc., put by the Pennsylvania Mining, Separating and Smelting Company, upon its leased lands, were personal property by the terms of the lease to them. They were taxable as such; were removable at pleasure by the lessee, and were in every respect openly treated as personal property, and could not be subjected to a judgment and sale for a mechanic's lien. Plaintiff's fourth instruction declares the law correctly. Koenig v. Mueller, 39 Mo. 165. The act of 1857, interpreted by the Supreme Court in this case, is embodied in the present mechanic's lien law. In no case would the boiler and engine, and the machinery for crushing and smelting lead, when forming no part of the realty, be subject to judgment and sale for a mechanic's lien. The opinion of Judge Bliss, 45 Mo. 100, Collins v. Mott, is decisive of this question under our statute. A mechanic's lien does not bind the engine, boiler, etc., when placed upon the leasehold property by the lessee. Collins v. Mott, supra; Haeussler v. Glass Co., 52 Mo. 452; Graves v. Pierce, 53 Mo. 423; Taylor on Landlord and Tenant, (5 Ed.) § 544, et seq.

PHILIPS, C.

This is an action of replevin to recover the possession of “one fifty horse power engine and the boiler, machinery and appurtenances attached thereto, also, of one set of machinery for crushing and separating metallic ores, and the building covering the same,” valued at $800. The answer tendered the general issue. Trial before the court without the intervention of a jury.

The plaintiff's title came through purchase of this property under judgments of certain attaching creditors, against the Pennsylvania Mining, Separating and Smelting Company. The attachments were made in September, 1877. The said company was the lessee of the land on which this property was situated. By the terms of the lease, the lessee was authorized “to remove the buildings, machinery and fixtures, or any part thereof, at any time,” provided no rents were due at the time. The sheriff under the writs of attachment took possession of said property by locking the same in the building and taking the key. The defendants claim title to said property under judgments and sale, under proceedings enforcing mechanics' liens, against the land and the building. These mechanics' liens were filed in January, 1878. The purchasers under the mechanics' liens got into the building some way, and when this writ of replevin was sued out, they were engaged in taking down and removing the property from the building. The parties filing the lien did not furnish the engine and boiler, but one of them did furnish the patent separator, ore washer, jigs and crusher. The building was a simple frame of about forty or fifty feet, and was built before the machinery was put in. The building was placed on a limestone foundation. The engine was put inside the building on a stone foundation for its support. It was a portable engine. The boiler stood on the outside of the building, covered by a shed, and connected by the usual appliances with the machinery inside. A number of instructions were requested and given in the case, but the defendants complain principally of the one in which the court declared, in effect, that the mechanics' lien read in evidence did not bind the engine, boiler and other machinery, etc., the same being on leasehold property. The court found the issues for plaintiff and rendered judgment accordingly, giving him the property including the house.

I. If this declaration of law be correct, as applied to the facts of this case, it is conclusive of defendants' claim to the machinery. By section 4 of the mechanics' lien act, then in force, (Wag. St. p. 908) it is provided, that: “Every building or other improvement erected, or materials furnished, according to the provisions of this chapter, on leased lands or lots, shall be held for the debt contracted for, or on account of the same, and also, the leasehold term for such lot and land on which the same is erected, etc.” In order, therefore, to ascertain what such lien covers, recourse must be had to section 1 of said act, which, in substance, is as follows:

“Every mechanic or other person who shall do or perform any work or labor upon, or furnish any materials, fixtures, engine, boiler or machinery for any building, erection or improvements upon land, or for repairing the same * * shall have for his work or labor done or materials, fixtures, engine, boiler or machinery furnished, a lien upon such building, erection or improvements, and upon the land,” etc.

It is too obvious for discussion, that while the lien is given for the work, materials, engines, etc., it is not given on the work, materials, or engine, boiler, etc., but “upon such building or erection or improvement.” The building then is the subject of the lien, and on it only, as an incident of the freehold. This idea has received emphatic recognition by the recent decision of this court in Ranson v. Sheehan, 78 Mo. 668, in which it is settled as the proper construction of this statute, that no lien can attach upon the building, where none is secured against the real estate on which the building is located. No terms are employed in the statute in defining the property to which the lien attaches which, by any admissible construction, includes the...