Riverside Lumber Company v. Schafer

• Decision Date: 28 June 1913
• Parties: RIVERSIDE LUMBER COMPANY, Appellant, v. WILLIAM V. SCHAFER et al
• Court: Missouri Supreme Court

158 S.W. 340

251 Mo. 539

RIVERSIDE LUMBER COMPANY, Appellant, v. WILLIAM V. SCHAFER et al

Supreme Court of Missouri, First Division

June 28, 1913

Appeal from Cape Girardeau Circuit Court. -- Hon. Henry C. Riley Judge.

Affirmed.

Ed. L Drum and Frank Kelly for appellant.

(1) 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. Montgomery County v Auchley, 103 Mo. 504; Secs. 9827, 10808-10813, R.S. 1909; Knox County v. Coggin, 105 Mo. 182; State ex rel. v. Moeller, 48 Mo. 331; State to use v. Bonner, 72 Mo. 387. There could be no loan without an order of court. It must speak by its record. Henry County v. Salmon, 201 Mo. 151. (2) The county was not necessarily a party to either suit. Ray County v. Bentley, 49 Mo. 242; Cedar County v. Johnson, 50 Mo. 225; Township Board v. Boyd, 58 Mo. 279; Searcy v. Clay County, 176 Mo. 493. Neither is the county a party to the loan of the school funds, as the court acts not for the county, but as trustees of the funds. Washington County v. Boyd, 64 Mo. 183; Morrow v. Pike County, 189 Mo. 610. Between the Adamses and the school fund the loan might be good, but not when the mortgage taken as this one was, intercepts or interferes with the lien of third parties. (3) The judges of the county court might have been made parties to the first suit if a valid mortgage had been taken by the court, but if there had been a valid mortgage and the judges were not made parties, their interest was not affected, as provided by Sec. 4211, R.S. 1889. Whether the school fund mortgage be good or held valid, the lien will take precedence over it even though the county justices were not made a party to the first suit establishing the lien. Schulenberg v. Hayden, 146 Mo. 583; R.S. 1899, sec. 4205; R.S. 1909, sec. 8215; R.S. 1899, sec. 4209; R.S. 1909, sec. 8219; R.S. 1899, sec. 4211; R.S. 1909, sec. 8221. Now, if plaintiff is correct that the county is not a necessary party, but that the justices of the county court are the proper parties, then they are the parties to the present suit, and had the opportunity to contest the mechanic's lien generally in this proceeding, and that is all they are entitled to, according to the above decision of this court. The mechanic's lien dates from the commencement of the work on the building, or the furnishing of the material. Brick Co. v. Bormans, 19 Mo.App. 664; McAdow v. Sturtevant, 41 Mo.App. 220; Schulenburg v. Hayden, 146 Mo. 591; Douglas v. Zinc Co., 56 Mo. 388; Allen v. Sales, 56 Mo. 28; Holland v. Cundiff, 96 Mo.App. 67; Fire Extinguisher Co. v. Farmers El. Co., 165 Mo. 171. The lien dates from the first item in the lien account filed. Coe v. Ritter, 86 Mo. 277. Plaintiff began in this case to furnish material on September 19, 1905, and the mortgage was not put on record until October 5, 1905. But, even if the court was correct in holding that plaintiff should have made the county, or the county judges party to the first suit, and that the loan of school funds made by the county clerk and treasurer, to the Adamses was valid, plaintiff's bill should not have been dismissed, but the court should have decreed that plaintiff was entitled to its lien on the building and that it should have had precedence over the mortgage. R.S. 1909, sec. 8215.

Wilson Cramer for respondent.

(1) The contemplated sale sought to be enjoined was ordered by the county court in pursuance of section 9835, which authorizes an order of sale when the principal and interest of a school fund bond secured by mortgage with power of sale becomes due and payable. R.S. 1899, sec. 9835. (2) No formal order by the county court for the loaning of school moneys is necessary. The statute provides that the bond given for such loans shall be to the county for the use of the school fund, and that it shall be secured by mortgage. R.S. 1899, secs. 9832 and 9833. In the present instance the bond of Mattie V. Adams and Ben. H. Adams is made to the county of Cape Girardeau, and in the mortgage given to secure it the county is named as party of the second part. (3) By the mortgage the title to Lot 48, Range I, is vested in the county of Cape Girardeau as a trustee to secure the debt, and, since the county was not made a party to the mechanic's lien suit, it is not affected by the judgment rendered therein. R.S. 1899, sec. 4211; Russell v. Grant, 122 Mo. 161. (4) The county's right as trustee in the mortgage being unimpaired by the judgment in the mechanic's lien suit, its power to sell remains in full force. It is now too late to undertake in this suit to establish a priority of lien. Actions to enforce mechanics' liens must be brought within ninety days after the lien is filed. R.S. 1899, sec. 4218. (5) Nor could equities between the plaintiff and the county of Cape Girardeau, as trustee for the school funds, if any such existed, be settled in the present action, for the reason that the county is not a party. The suit is against the county judges and the sheriff.

OPINION

WOODSON, P. J.

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 $ 1800, 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, Missouri, 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 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 $ 1800, 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 the 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, when 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 anywise subjecting the said lot to the school fund mortgage, and a temporary injunction was granted, which, upon hearing, in January, 1909, was dissolved, and 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, or 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...