Schulenburg & Co. v. Gibson

• Decision Date: 31 October 1851
• Citation: 15 Mo. 281
• Court: Missouri Supreme Court
• Parties: SCHULENBURG & CO. v. CHAS. GIBSON.

15 Mo. 281

SCHULENBURG & CO.

v.CHAS. GIBSON.

Supreme Court of Missouri.

October Term, 1851.

ERROR TO ST. LOUIS CIRCUIT COURT.

At the November term, 1850, the respondents commenced an action against Boecker, upon a demand for materials furnished by respondents to Boecker, used in the erection of a house on the southeast corner of Broadway and Columbia streets, in the city of St. Louis. The demand on which the suit was brought had been filed as a lien against the property on which the said house was erected. At the April term of said Circuit Court, default having been taken and entered against Boecker, Charles Gibson, trustee for said Cornelia V. Wilson, voluntarily came into court and waived the issuing of any scire facias, and entered his appearance as party to the action, and thereupon an agreed case was made between the parties to the following effect, to-wit: On the fifth day of October, 1849, Charles Boecker was the owner in fee simple, and was then in possession of a piece of ground situate on the southeast corner of Broadway and Columbia streets, in St. Louis, and while so owning and being in possession of said ground contracted with the respondent to furnish materials for the construction of a building or buildings on said ground. Said materials were delivered to said Boecker by the respondent, and was in and about the erection of said buildings on said ground. All such materials were furnished and claimed between the said 5th of October, 1849, and the 4th day of January, 1850. By far the largest portion, however, was so furnished and delivered before the 16th day of November, 1849. It was farther agreed that the sum, claimed by respondents, was still due them for such materials, and that on the 29th day of August, 1850, respondent gave notice, as required by law, and on the same day filed with the clerk of the Circuit Court of St. Louis county a just and true account of the demand with a true description of the property, &c. That suit was brought on the demand on the 20th day of October, 1850. On the 23rd day of November, 1849, Boecker conveyed the said property to Schafer's trustee to secure the payment of the sum of $200 and interest in one year from stated date; that on the 19th day of December, 1850, upon default having been made in the payment of said recovery and $300 of ground rent, said property at the instance of said Schafer, was sold in pursuance of the power contained in the deed to Schafer's trustee, and Charles Gibson as trustee for said Cornelia V. Wilson became the purchaser of the same together with the building thereon. Said building for which said respondent furnished said materials was not completed until after the first day of March, 1850. Upon this state of facts it was submitted to said Circuit Court: Whether as against the interest acquired in said property by the said Gibson as trustee as aforesaid under said deed of trust, the said respondent's claim is a valid lien. Whether said property under the said state of facts is liable to the lien claimed by respondent. The Circuit Court gave judgment for the respondent. Mr. Gibson moved to set aside the finding and grant a new trial, which having been overruled and exceptions taken, the case is brought here by writ of error.

GIBSON, for Plaintiff. The item last in the account of the plaintiffs below was furnished to Boecker, as appears by the agreed case, on 4th January, 1850. The lien was not filed, neither was any notice given until the 29th of August, 1850, more than six months after the cause of the action accrued. The building was finished, March, 1850--about five months before notice was given of the lien filed. The point on which the plaintiff in error relies, is that the plaintiff's account was not filed in time, nor was the notice given in the time required by law, and therefore that there is no lien against the property. To commence at the beginning, the Rev. Code of 1835, p. 108, § 3, requires “every person who wishes to avail himself of the benefit of this act” to file his account within six months “after such demand shall have accrued.” By the Rev. Code of 1845, p. 733, § 2, it is provided that every person except a sub-contractor who wishes to avail himself of the benefits of this act “should file with the clerk of the Circuit Court of the county in which the building is situate and within six months after the material shall have been furnished or work and labor performed, a just and true account,” &c. The plaintiff in this case is not a sub-contractor and therefore cannot recover under this act. The plaintiff relies, no doubt, on the special act of 1842-3, p. 82, which is applicable only to St. Louis county. Have they complied with the provisions? Section 3 of this act, says that “every person who wishes to avail himself of the benefits of the preceding section (which gives the lien) shall give notice to the owner, owners or agent, within thirty days after the indebtedness accrued or the completion of the building or improvement, that there is such an amount due,” &c. In this case the indebtedness accrued on the 4th January, 1850, (the date of the last item in the account), and the building was finished in March, but no notice was given and no account filed until the 29th of August following, a period of more than six months from the fourth of January, and about five months from the time the building was completed. Section 4 declares it to be “the duty of every person who wishes to avail himself of the benefit of this act, to file with the clerk within six months after notice shall have been given agreeable to section third a just and true account of the demand,” & c., but in this case no notice was given at all, “agreeable to section third.” The 10th section, on which no doubt the plaintiff relies, if continued so as to apply to the incipient steps necessary to perfect a lien, is flatly and unquestionably contradictory to the 3rd and 4th sections of the same act, and is opposed also to all other acts passed by the Legislature, as will be seen by the law above quoted. This court has already decided in Lee v. Chambers, 13 Mo R. 238, that suit must be brought within ninety days after filing the lien.

The good of the public requires that property ought not to be bound for the long period of one year by a secret incumbrance which is to be preferred to all others and of which there is nothing on the records of the country, but which cannot be cut out or defeated by any subsequent transfer by the owner even to a bona fide purchaser for value. This state of things never could have been intended by the Legislature. As persons having contracts with the owners were already provided for by the act of 1835, it seems to me that this act of 1843 was only intended to give sub-contractors a lien who before the passage of this act had none and does not apply to such principal contractors, and that the exception in the 3rd, section, 1843 was inserted only to prevent a repeal of the act of 1835 as to St. Louis county. The agreed case shows that the notice was given and lien filed according to law on the 29th of August, 1850; this means only that the papers were in form of law but does and was not intended to waive the question of time, and the question of time was the only question argued below.

LORD, for Defendant.

I. No notice was necessary under the act of 1843, when the contract was made with the owner. Section 3, p. 83, Laws of Mo. 1842-3. 1. The act of 1843 is declared by this court to be alone operative in St. Louis county and in the same case this court also declared that the act of 1845 does not repeal or modify it. Speilman v. Shook, 11 Mo. R. 340. 2. The whole act of 1843 must be taken together, and this court will then give it such a construction as will make the act consistent, and as will but carry out the ends intended to be obtained thereby. Now by section 3 of said act, we say no notice in such a case as this was required and that section 4 of same act requiring lien to be filed within six months after notice, &c., only applies to those cases where sub-contractors are seeking to enforce a lien. We think upon a fair construction of the acts of 1843, that any contractor who makes a contract with the owner may file his lien at any time within twelve months after the completion of the building, being careful to file his lien so as to enable him to sue thereon before the twelve months expire. See sections 9 and 10, law 1843. The act requires notice to be given within thirty days, &c., “but the above limit in regard to notice shall not extend to persons having contracts with the owners,” &c. What limit shall apply in this last case? Shall we go to the act of 1845? that act is not in force here and so declared by this court in 11 Mo. R. 343; but what notice would have been required between the date of the act of 1843 and 1845? certainly not the time mentioned in the act of 1845 which act was not then in existence!

II. If any notice was required it was given in time, for it was given within six months after the complstion of the building. The building was completed after the first day of March and notice given and lien filed on the 29th day of August ensuing. Now the notice spoken of by the act of 1843 to be given within thirty days after the indebtedness accrued, on the completion of the building but such limits does not apply to persons having contracts with the owners. Then we go to the act of 1845 to find the limit as to the time when a person who has a contract with the owner must give notice and find it: Must be six months. Very well, then we say we must...