Schaeffer v. Lohman

• Decision Date: 31 March 1863
• Parties: WILLIAM SCHAEFFER, Appellant, v. FREDERICK LOHMAN et al., Respondents.
• Court: Missouri Supreme Court

34 Mo. 68

WILLIAM SCHAEFFER, Appellant,

v.FREDERICK LOHMAN et al., Respondents.

Supreme Court of Missouri.

March Term, 1863.

Appeal from St. Louis Land Court.

A. M. & S. H. Gardner, for appellant.

At the time of the trial of this cause in the court below, this question had never been decided in this court under our present lien law. A similar case arose, however, under the local lien law of 1843 and the general act of 1845, and is reported in 25 Mo. 559.

That case was relied upon by respondents' counsel in the court below as a precedent for this. The special act concerning mechanics' liens in St. Louis county, approved February 24, 1843, provides that “the lien for work and materials shall be preferred to all other incumbrances which may be attached to, or upon, such buildings or other improvements, or the ground, or either of them, subsequent to the commencement of such buildings or improvements.” (Sess. Acts 1843, p. 84, § 6.)

But this act did not provide the machinery for enforcing the lien, and parties were compelled to look to the general act of 1845 for the machinery. That act provides that “no execution shall issue against the property charged with such lien unless the defendant shall have owned or possessed the said property at the time of the commencement of the suit, or unless a scire facias shall first have issued and been served upon the owner or possessor of such property requiring him to appear and show cause why judgment should not be entered up and execution had against such property.” (R. C. 1845, p. 373, § 7.)

The decision in the case above referred to was expressly based upon that section of the law. (Clark & Lemon v. Brown, 25 Mo. 559.)

But the statute under which the judgments were obtained, and the property claimed in this suit was sold, contains no such provision. The lien suits against the property in controversy here were commenced under the mechanics' lien law of 1857, specially applicable to this county. The sixth section of that act provides that “the lien for work and materials as aforesaid shall be preferred to all other encumbrances which may be attached to or upon such buildings, bridges or other improvements, or the ground, or either of them, subsequent to the commencement of such buildings or improvements.” And the eighth section of that act provides that “in all suits under that act, the parties to the contract shall, and all other persons interested in the matter in controversy and in the property charged with the lien may, be made parties; but such as are not made parties shall not be bound by any such proceeding. (Sess. Acts 1856-7, p. 669, § 6 & 8.)

The difference between the proceedings under the lien laws of 1845 and 1857 is radical. The law of 1845 provided that “no execution against the property to which a lien had attached could issue until the persons owning the property at the commencement of the suit had an opportunity to be heard in court.”

The law of 1857 entirely abolished that provision, and only required the parties to the contract, and such persons as were interested in the property at the time the lien attached, should be made parties to the suit.

But appellant's counsel submits that this case comes fully within the rule laid down by this court in the case of Hauser v. Hoffman, 32 Mo. 334, and that the principle contended for by appellant was fully established in that case.

That a mechanic or material man is not bound to file his lien against one who was not the owner at the time of the commencement of the building, but became so before the filing of the lien, is well settled in Pennsylvania, -- the mechanics' lien law of that State being substantially the same as ours. (Purd. Dig. 578, § 10; 4 Watts & Serg. 257.)

The declaration of law as given by the court below, at the instance of defendants' counsel, was without precedent, and directly against the statute; it would not even have been correct under the law of 1845: but surely if the Legislature had intended that no judgment could be rendered against the property in a suit to enforce a lien unless the purchaser be made a party to the record, as declared in that instruction, it would not have failed to have stated such intention in plain words.

E. Peacock, for respondents.

The only point presented to the court by this case is, whether Philip G. Ferguson, the purchaser (after the materials were furnished) of the leased premises, but who so purchased, and whose deed was of record prior to the filing of the liens by Meier & Co. and William Schaeffer, can have his title divested out of him without being made a party to the record in the suit to enforce those liens.

It is contended by the respondents in this action that said Meier & Co. and William Schaeffer took nothing by their judgments on the liens. So far as the property is concerned, the judgments only have the force and operation of general judgments against said Koepper; and although the Law Commissioner's Court gave a special lien against said property, yet that part of the judgment was inoperative to take the title of Ferguson in the land out of him. Before the title of Ferguson could be affected, he must have been made a party to the suits to enforce the liens. (Clark v. Brown, 25 Mo. 559.)

Further, the mechanics' lien law of 1857, under which the lien suits aforesaid were brought, expressly state that unless the owner of the premises on which the buildings are erected is sued he shall not be...