Rosenzweig v. Ferguson

• Decision Date: 16 December 1941
• Docket Number: 36650,36651
• Citation: 158 S.W.2d 124,348 Mo. 1144
• Parties: Grant I. and Mathilde Rosenzweig, Husband and Wife, Appellants, v. Claude A. Ferguson
• Court: Missouri Supreme Court

158 S.W.2d 124

348 Mo. 1144

Grant I. and Mathilde Rosenzweig, Husband and Wife, Appellants, v. Claude A. Ferguson

Nos. 36650, 36651

Supreme Court of Missouri

December 16, 1941

[Copyrighted Material Omitted]

Reported at 348 Mo. 1144 at 1151. Motion to Transfer to Banc Overruled December 16, 1941. Motion to Reconsider Motions for Rehearing and to Transfer to Banc Overruled February 4, 1942.

Original Opinion of October 25, 1941, Reported at 348 Mo. 1144.

OPINION

PER CURIAM.

On Motion for Rehearing.

Appellants filed a motion for rehearing arguing vehemently that our opinion, holding that Section 1270, R. S. Mo. 1939, which provides that judgments shall be a lien upon lands for three years, did not apply to a decree establishing a mechanics' lien, was erroneous. Appellants, among other cases, cited Eyssell v. City of St. Louis, 168 Mo. 607, 68 S.W. 893. That was a case wherein the City of St. Louis obtained a judgment for special benefits charged against a lot in a condemnation proceeding. Appellants also rely much upon Hill v. Arnold, 177 S.W. 343, as holding that all judgment liens expire in three years, including decrees establishing special liens against land. The decree of the trial court in the Hill case was treated by this court as a money judgment in personam. Note what the court said at page 345 of 177 S. W.:

"We say the decree undertakes to give a money judgment because the judgment is not expressed in the clear and apt language customarily used in rendering judgment upon debt. And some question might arise as to whether the judgment in this regard was even sufficient upon which to base an execution."

The judgment of the trial court canceled a mortgage and the parties claimed that the lien created by the mortgage was merged in the judgment. This court decided that since the mortgage was canceled the only lien existing was the judgment lien. We do not think that those cases control the question now before us. The statute governing mechanics' liens gives to mechanics and others a lien upon the property improved by virtue of the contract with the owner of the land upon which the improvements were made. [Sec. 3546, R. S. Mo. 1939.] Those liens may be perfected and perpetuated by taking the necessary legal steps prescribed by the subsequent sections of the statute, particularly Sections 3551 and 3562, R. S. Mo. 1939. It is clear that the general statute, Sec. 1270, R. S. Mo. 1939, does not apply, because mechanics' liens are governed by a special law applicable to those liens. A decree of a court of equity entered pursuant to Section 3570, R. S. Mo. 1939, merely establishes liens created by the statute in favor of those whose labor and material have added an improvement to the lot or land charged with the liens. Certainly the life of those liens does not depend upon Section 1270, supra. Nor does that section in any way limit the provisions of the mechanics' lien law.

In speaking of a special lien against land by a decree in equity in a suit involving a vendor's lien the Kansas City Court of Appeals in Hockaday v. Lawther, 17 Mo.App. 636, l.c. 644, said:

"To that decree no lien attached such as belongs to judgments generally by virtue of the statute, but only such lien as the decree itself fixed, established, and ordered to be enforced. . . . At any time within ten years subsequent to its rendition, an execution could have been issued upon the decree. . . . After the expiration of ten years from its rendition no execution could have been so issued."

Gill on Missouri Titles (3 Ed.), sec. 1421, page 636, treating this subject, tersely states:

"Special judgments do not expire in three years, 107 Mo. 394, 114 Mo. 493 (general tax judgments), 70 Kan. 43 (mechanics' lien), 35 Ohio St. 430 (foreclosure of mortgage), 27 Cyc. 430, 443, 23 Cyc. 394.

"But do expire in ten years, 175 Mo. 63, 12 S.W.2d 438, 27 S.W.2d...