Riverside Lumber Co. v. Schafer

• Decision Date: 28 June 1913
• Citation: 158 S.W. 340
• Parties: RIVERSIDE LUMBER CO. v. SCHAFER et al.
• Court: Missouri Supreme Court

158 S.W. 340

RIVERSIDE LUMBER CO. v. SCHAFER et al.

Supreme Court of Missouri, Division No. 1.

June 28, 1913.

1. SCHOOLS AND SCHOOL DISTRICTS (§ 18) — LOAN OF SCHOOL FUND ON SECURITY OF MORTGAGE — VALIDITY OF MORTGAGE.

In view of Rev. St. 1899, §§ 9832, 9833, relating to records in case of a loan of school funds and to the form of mortgage security, but not requiring a formal order of the county court, as trustee, on the loaning of school funds, a mortgage, securing a loan of such funds made to the county court and duly recorded and accepted by it, was valid, although made by the county clerk and the county treasurer.

2. JUDGMENT (§ 707) — PROCEEDINGS TO FORECLOSE — PARTIES — COUNTY COURT LOANING SCHOOL FUNDS ON MORTGAGE.

Under the express provision of Rev. St. 1899, § 4211, where the county court, which had loaned school funds on mortgage was not made a party to a proceeding to enforce a mechanic's lien, it was not bound by such proceeding.

3. MECHANICS' LIENS (§ 168) — MATERIALS — TIME WHEN LIEN ATTACHES.

A mechanic's lien dates from the commencement of the work on the building, or the furnishing of the materials therefor.

4. MORTGAGES (§ 163) — PRIORITY OVER MECHANIC'S LIEN.

A mechanic's lien for materials, furnished from September, 1905, had priority over the mortgage not recorded until October 5, 1905.

5. MORTGAGES (§ 178) — PROCEEDINGS TO ENFORCE — WAIVER OF PRIORITY — FAILURE TO MAKE MORTGAGEE A PARTY.

Rev. St. 1899, § 4211, provides that all parties interested in the property may be made parties to a suit to enforce a mechanic's

lien, and that those not made parties shall not be bound by such proceeding, and that the priority of the lien might be established in such proceeding. Section 4218 requires that an action to enforce a mechanic's lien be instituted within 90 days after the lien is filed. Held, that whatever preference a mechanic's lien for materials might have had over a subsequently recorded mortgage as security for a loan of school funds was waived and extinguished, where the claimant did not make the county court, as trustee of the school funds, a party to the foreclosure suit.

Appeal from Circuit Court, Cape Girardeau County; Henry C. Riley, Judge.

Action by the Riverside Lumber Company against William B. Schafer and others, Judges of the Court of Common Pleas of Cape Girardeau County and the Sheriff of such county. From a judgment dissolving the temporary injunction and dismissing the bill, plaintiff appeals. Affirmed.

This suit was instituted in the court of common pleas of Cape Girardeau county by the plaintiff and appellant against the judges of the county court and sheriff of said county, to enjoin the sale of lot 48, range I, of the city of Cape Girardeau, under and by virtue of a certain mortgage given to secure $1,800, borrowed by Mrs. Mattie V. Adams and her husband, Ben H. Adams, from the school funds of said county.

The facts are undisputed, and are as follows, as appears from the statements of counsel for appellant and respondents:

Ben H. and Mattie V. Adams were husband and wife, and the owners of lot 48, range I, in the city of Cape Girardeau, Mo., in the year 1905, except a certain portion thereof, sold to Nellie Phelan on August 16, 1905, which is not material to this suit. Some time during September, 1905, they let and entered into a contract with one A. J. Schmidt to erect a building on the lot, and Schmidt began to secure material for the building from the plaintiff, Riverside Lumber Company, on the 10th day of September, 1905, under a contract with it to furnish the material. The lumber company's books show that the lumber was charged to A. J. Schmidt for the Adams building. The material continued to be furnished from time to time until February 2, 1906. The testimony shows that part of the material was delivered on the grounds where the building was erected during September, 1905, and that the foundation was built during September, 1905, and that the foreman of the carpenters took his crew of carpenters to the building on October 7, 1905, and found the basement or cellar already dug, walled up, the foundation built and ready for the carpenters to begin their work. On October 5, 1905, Mr. and Mrs. Adams borrowed from the school funds of said county $1,800, and placed on record a school fund mortgage to the county of Cape Girardeau on lot 48, range "I," for said sum. The lumber company furnished material to the amount of $897.83, which was used in the building erected by Schmidt under his contract with Mr. and Mrs. Adams. The material was not paid for, and the lumber company on April 12, 1906, filed its itemized statement, duly verified, in the office of the circuit clerk of Cape Girardeau county, gave notice to the Adamses and the purpose thereof, and on the 4th day of May, 1906, brought suit against Ben H. and Mattie V. Adams and A. J. Schmidt on its lumber account, and to establish a lien against lot 48, range I, in the Cape Girardeau court of common pleas, from which court a change of venue was taken to the circuit court. The case was tried at August term, 1906, and resulted in a judgment for plaintiff in the sum of $897.83, which was declared a lien against lot 48, range I. The Adamses appealed the case to the St. Louis Court of Appeals, and the judgment was affirmed by that court. In that case the county, the mortgagee named in the mortgage, was not made a party, nor any of the county judges. Afterward the plaintiff caused a special execution to be issued on its judgment, and the sheriff levied the same on lot 48, range I, advertised it under the execution, and at the January term of court, 1909, sold it, and the plaintiff became the purchaser thereof. After the plaintiff bought the property and took possession of it the county court made an order on June 7, 1909, directing the sheriff to sell the lot under its mortgage, taken for the school fund to secure the loan made to Adams in 1905, which mortgage was recorded after the plaintiff began to furnish the material and after the building was begun. A copy of the order was delivered to the sheriff, and he advertised the lot and was going to sell it, which is admitted by defendants, and plaintiff brought an injunction suit against the members of the county court and the sheriff, at the August term, 1908, asking that they be restrained from selling the lot, or offering to sell it, or in any wise subjecting the said lot to the school fund mortgage, and a temporary injunction was granted, which upon hearing, in January, 1909, dissolved, the plaintiff's petition dismissed. The record shows that the county court never made any order directing the loan of said school funds to be made to Adams, never approved the bond, nor did anything with it except the clerk testified that the court had directed that the interest be collected on it. He testified: That Mr. Adams appeared before the court and asked orally for a loan of the school funds. That Adams was informed that no funds were then on hand, but might be later. Later some funds were paid in, and that then the county clerk and the treasurer let Adams have the money took his mortgage and bond, and put them on record. There never was any record of it made by the county court approving the action of the clerk and treasurer, and no action ever taken by the court, except afterward it ordered the interest collected, and then made the order in June, 1909, that the sheriff sell the lot. It does not appear that the county court ordered or authorized the clerk and treasurer to make the loan. No declarations of law were asked or given; the case was tried by the court, and judgment rendered dissolving the temporary injunction and dismissing plaintiff's bill.

Counsel for appellant presents the following:

Assignment of Errors.

(1) Court erred in dissolving the injunction and permitting defendants to sell the property of defendants.

(2) The court erred in dismissing plaintiff's bill and refusing to make the injunction permanent, and to grant plaintiff the relief asked.

(3) The court erred in applying the law of the state to the facts of the case.

(4) The court should have determined the equities of the parties in the property and decreed plaintiff a lien on the building, at least.

Ed L. Drum and Frank Kelly, both of Cape Girardeau, for appellant. Wilson Cramer, of Jackson, for respondents.

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

I. It is first insisted by counsel for appellant that: "The county courts are trustees of the school funds, and can only deal with, handle, and loan the funds according to the provisions of the statutes, and the statutes require the courts to make the loans and take the security, and the courts cannot delegate such power." In support of...