Russell v. Inter-State Lumber Company
| Decision Date | 31 October 1892 |
| Citation | 20 S.W. 26,112 Mo. 40 |
| Parties | Russell, Appellant, v. Inter-State Lumber Company |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. J. W. Henry, Judge.
Affirmed.
L. A Laughlin for appellant.
(1) The suit asking relief by injunction was properly brought. Park v. Bank, 97 Mo. 130; Murphy v Simpson, 42 Mo.App. 654. And having obtained jurisdiction equity will proceed to do full justice between the parties. Real Estate, etc., v. Collonious, 63 Mo. 290; Holloway v. Holloway, 97 Mo. 628. (2) The plaintiff has the right to object to the validity of the proceedings to enforce the lien in this suit to the same extent that he might have done in the lien suit had he or his privies been parties thereto. Phillips on Mechanics' Liens, sec. 395; Revised Statutes, 1889, sec. 6713; Hauser v. Hoffman, 32 Mo. 334. (3) The deed of trust was prior to the alleged lien, and judgment enforcing the lien against the ground was erroneous. Revised Statutes 1889, sec. 6707; Steininger v. Raeman, 28 Mo.App. 604. (4) The judgment enforcing the lien gave the Inter-State Lumber Company no rights in the property. Fire Works v. Ellison, 30 Mo.App. 67; Crandall v. Cooper, 62 Mo. 478; Coe v. Ritter, 86 Mo. 277. (5) The lien statement is fatally defective; no name appears in the body of the affidavit, nor does it state that he makes it for the company; besides a separate lien should have been filed against each house. (6) The judgment enforcing the lien is void.
Kagy & Bremermann for respondent.
(1) The appeal is from an order dissolving a temporary injunction and cannot be entertained. Tanner v. Irwin, 1 Mo. 65; Harrison v. Rush, 15 Mo. 175; Johnson v. Board of Education, 65 Mo. 47; Witthouse v. Bank, 18 Mo.App. 181; Chase v. Hall, 41 Mo.App. 15. (2) The bill does not state any equity. Equity will not enjoin an execution sale on the ground that the sale will pass no title and may cast a cloud on the title of the true owner. Drake v. Jones, 27 Mo. 428; Kuhn v. McNeill, 47 Mo. 389; Witthouse v. Bank, 18 Mo.App. 181.
This action is injunction to restrain the sale of certain contiguous lots and buildings thereon, in Goodin Place in the City of Kansas, under a special execution upon a judgment establishing a mechanics' lien thereon, in favor of the defendant in a suit in which plaintiff and Joel Harford and James Goodin were defendants.
On the twentieth of September, 1888, James Goodin, being the owner of said real estate on which there were then no buildings, executed and, on the twenty-eighth of September, 1888, acknowledged a deed conveying the same to the said Joel Harford for the consideration of $ 8,750. For the purpose of making a payment on said purchase price, and to raise money to erect buildings on said lots, Harford, on the fourth of October, 1888, negotiated with Harkness & Russell for a loan of $ 7,050, and on that day with his wife executed and acknowledged a deed of trust conveying said lots to Louis A. Laughlin in trust to secure the payment of a note to said Harkness & Russell for that amount, payable in ninety days. On the sixth of October the parties met; the deed from Goodin to Harford was delivered to Harkness & Russell, who paid Goodin $ 2,250 of the loan to Harford, who then delivered his deed of trust and note to them, and they afterwards on the eighth of October filed both for record, the deed at 9:32, and the deed of trust at 9:55 A. M. Afterwards Harford executed a second deed of trust on the property to James Scammon to secure a note given to Goodin.
Pending these negotiations with Harkness & Russell, Harford contracted with the defendant (The Inter-State Lumber Company) to furnish material for building six two-story frame houses on the lot, and, on the eighth day of October, began delivering such material, and continued so to do until the twenty-second day of October, 1888, at which date they had delivered material that went into the construction of said houses, amounting to the value of $ 2,460, which amount remaining unpaid on the nineteenth of February, 1889, the defendant filed a "mechanics' lien" therefor.
In the meantime Harkness & Russell had paid the remainder of their loan to Harford, on his order for material and labor that went into the buildings; and, on the twenty-eighth of February, 1889, his note secured by the deed of trust remaining unpaid, they foreclosed the same by a sale on that day, at which one Charles T. C. White became the purchaser at the price of $ 2,500, and received a deed therefor from the trustee, dated March 1, 1889. On the ninth of March, 1889 White quitclaimed the premises to the plaintiff, the junior member of the firm...
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