Schulenburg v. Hayden
| Decision Date | 08 December 1898 |
| Citation | 48 S.W. 472,146 Mo. 583 |
| Parties | Schulenburg et al., Appellants, v. Hayden et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Thomas A. Russell Judge.
Affirmed.
Rudolph Schulenburg, Thos. J. Rowe and Haughton & Brownrigg for appellants.
(1) A judgment in a mechanics' lien suit, when the parties to a prior deed of trust have been joined and duly served in the suit, is binding on such parties and their privies, and the purchaser of the property under such judgment obtains title as against all such. (a) Judgment in res adjudicata. Hicks v. Scofield, 121 Mo. 381; Russell v Grant, 122 Mo. 161; Schaeffer v. Lohman, 34 Mo 68; Reilly v. Hudson, 62 Mo. 383; Allen v. Sales, 56 Mo. 28; Holt Co. v. Cannon, 114 Mo. 514. (b) Purchaser under deed of trust and privies are bound by the judgment. Real Est. Co. v. Collonius, 63 Mo. 290; Koehler v. Bernicker, 63 Mo. 368; Turner v. Babb, 60 Mo. 342; Robinson v. McCune, 128 Mo. 577; Young v. Scofield, 132 Mo. 650; Gamble v. Daugherty, 71 Mo. 599; Stevenson v. Edwards, 98 Mo. 622; Carr v. Cates, 96 Mo. 271. (c) Priorities are adjudged in such cases when necessary. Hicks v. Scofield, 121 Mo. 381; Hall v. St. Louis Mfg. Co., 22 Mo.App. 33; McAdow v. Sturtevant; 41 Mo.App. 220; Mo. Fire Clay Wks. v. Ellison, 30 Mo.App. 67; Dugan v. Scott, 37 Mo.App. 663. (2) Particularly is this true when the judgment is against the house only and not against the land. The purchaser has, then, the right to remove the house. Reed v. Lambertson, 53 Mo.App. 76; Jodd v. Duncan, 9 Mo.App. 417; Ambrose Mfg. Co. v. Gapen, 22 Mo.App. 397; Haeussler v. Thomas, 4 Mo.App. 463; Page v. Bettes, 17 Mo.App. 366; McAdow v. Sturtevant, 41 Mo.App. 220; Crandall v. Cooper, 62 Mo. 478; Russell v. Grant, 122 Mo. 161; Halzbour v. Meer, 59 Mo. 434; R. S. 1889, sec. 6707. (3) Under the most unfavorable view of the matter that could have been held against plaintiffs, they were entitled to have the facts submitted to a jury. Hall v. St. Louis Mfg. Co., 22 Mo.App. 33; Hall v. Planing Mill Co., 16 Mo.App. 454; Combs v. Lippincott, 35 N. J. 481; Parish & Hazard's App., 83 Pa. St. 112; Armstrong v. Ware, 20 Pa. St. 519; Hershey v. Shenk, 58 Pa. St. 382; Okisko Co. v. Matthews, 3 Md. 168. (4) As a matter of law the house in question is a new house. There were sufficient changes and additions to what was left by the fire to constitute the second house a new house. Armstrong v. Ware, 20 Pa. St. 519; Driesbach v. Keller, 2 Pa. St. 77; Hershey v. Shenk, 58 Pa. St. 382; McAdow v. Sturtevant, 41 Mo.App. 224; Hall v. St. Louis Mfg. Co., 22 Mo.App. 33; Combs v. Lippincott, 35 N. J. 481; Wheeler v. Pierce, 167 Pa. St. 424; Lightfoot v. Krug, 35 Pa. St. 348; In re Building's Est., 1 Ashmead, 377. (5) The title to the house passed to plaintiffs as purchasers under the lien judgment, and the only way in which a question of priority can now be raised is as to the disposition of the surplus arising from the sale under the deed of trust. Lewis v. Morrow, 89 Mo. 174; Latrielle v. Dorlegue, 35 Mo. 233; Dollarhide v. Parks, 92 Mo. 178; Gray v. Bowles, 74 Mo. 419; Jones v. Hart, 60 Mo. 362; Crandall v. Cooper, 62 Mo. 478; Schaeffer v. Lohman, 34 Mo. 68; Koehler v. Bernicker, 63 Mo. 368; O'Reilly v. Nicholsan, 45 Mo. 160. (6) Where the building is new, the lien is prior to that of a deed of trust prior in point of time. Russell v. Grant, 122 Mo. 161; Haeussler v. Thomas, 4 Mo.App. 463; Reed v. Lambertson, 53 Mo.App. 76; Dugan v. Scott, 37 Mo.App. 663; R. S. 1889, sec. 6707. (7) The law should be construed liberally in favor of the mechanic and those claiming under him. Hicks v. Scofield, 121 Mo. 381; Walden v. Robertson, 120 Mo. 38; Dugan Co. v. Gray, 114 Mo. 497.
Seneca N. Taylor, Charles Erd and Seneca C. Taylor for respondents.
(1) A deed of trust, placed by an owner on a lot with a complete building thereon, duly recorded, conveys a vested right in the building, and a contractor who furnishes material and labor for repairs on such building does not obtain a lien prior and superior to such deed of trust as to the building. R. S. 1889, secs. 6706, 6707; Haeussler v. Thomas, 4 Mo.App. 463; Hall v. Mfg. Co., 22 Mo.App. 33; Dugan v. Scott, 37 Mo.App. 663; Reed v. Lambertson, 53 Mo.App. 76; Crandall v. Cooper, 62 Mo. 478; Reiley v. Hudson, 62 Mo. 383; Grandt v. Russell, 122 Mo. 161. (2) Suits to enforce mechanics' liens in this State, are purely statutory. They are legal proceedings, and not proceedings in equity. Even the form of judgment and execution is minutely prescribed by statute. R. S. 1886, secs. 6705, 6706, 6707, 6712, 6713, 6718, 6719; Steininger v. Raeman, 28 Mo.App. 601; Dugan v. Scott, 37 Mo.App. 663; Lumber Co. v. Hoos, 67 Mo.App. 273; 15 Am. and Eng. Ency. of Law, 117; Love v. Cox, 68 Ga. 269; Cummings v. Wright, 72 Ga. 767; Pratt v. Tudor, 14 Tex. 37; Porter v. Miles, 67 Ala. 132. (3) The lien and the pleadings in the case of Charles H. Reader v. Silva et al., did not state facts as the basis for, nor claim a lien on the building prior and superior to that created by the deed of trust given by the Silvas to Rutledge, trustee. Since this was not done, the question of priority could not have been before the court for adjudication. R. S. 1889, sec. 6712; Russell v. Lumber Co., 112 Mo. 44; Lumber Co. v. Hoos, 67 Mo.App. 272; Ins. Co. v. Ellison, 30 Mo.App. 67; Steininger v. Raeman, 28 Mo.App. 591. (4) The judgment in the Reader case, which forms the basis of plaintiffs' action, went no further than to charge the interest of the Silvas in the property against which a lien was sought. The lien and pleadings only sought a lien against the interest of the Silvas. The judgment does not pretend to adjust priorities. It does not adjudge Reader's claim against the building as prior and superior to the title acquired from the deed of trust sale. (5) To constitute a judgment in a former suit between the same parties an estoppel, the record must show that the same subject-matter had been passed upon and adjudicated in that suit. Clemens v. Murphy, 40 Mo. 121; Spurlock v. Railroad, 76 Mo. 67; State ex rel. v. James, 82 Mo. 509; Nelson v. Barnett, 123 Mo. 571; Short v. Taylor, 137 Mo. 562; Baker v. Lowe, 137 Mo. 688; Eastman v. Cooper, 15 Pick. 276; Gilbert v. Thompson, 9 Cush. 348; Ridley v. Stillwell, 27 Mo. 157; Hickerson v. City of Mexico, 58 Mo. 62; Owens v. Link, 48 Mo. 534; Sutton v. Dameron, 100 Mo. 150. (6) Where a mechanic's lien holder has established his lien as against a building as prior and superior to the purchaser under the deed of trust, if the latter prevents the purchaser under the lien judgment from removing the building, his proper remedy is an action for damages, and the measure of recovery is limited to the market value of the materials, less the cost of removal; not the value of the building as it stood; in other words, his actual damages only are recoverable. Seibel v. Siemon, 5 Mo.App. 303; Seibel v. Siemon, 52 Mo. 363; Kansas City Hotel Co. v. Sauer, 65 Mo. 288.
This is an action in replevin to recover possession of a house.
On February 13, 1890, Louis J. Silva, owned lots 38 and 39, in city block 4546, in St. Louis, on which there was a two story, hip-roof dwelling house, and on that day he gave a deed of trust, covering the land and the house, to Donovan, as trustee for Geraldin, to secure a loan of $ 5,000. On February 25, 1890, Silva gave a second deed of trust, covering both the land and the house, to Donovan as trustee for Geraldin, to secure a loan of $ 1,000. On January 19, 1892, Silva gave a deed of trust conveying the land and house to Rutledge, as trustee for Bradford, to secure a loan of $ 5,000. All of these deeds of trust were properly recorded. About July, 1893, the house was so injured by fire, as that the roof, the third floor (in the hip-roof), the rear portion of the second floor, all but the northeast corner and center of the first floor, the east wall, the rear wall to the second story joist, the partitions in the center of the first floor and all those on the second floor, except in the north east room, were destroyed. The west wall and most of the front wall were left standing intact. Before the fire the house was worth about $ 6,000. What remained after the fire was worth about $ 2,000 and the house was uninhabitable. After the fire Silva made contracts with various contractors to reconstruct the house, among them with Charles Reader, for mantels and grates, for the price of $ 445. The plan of the house was changed so as to include a new room, with bay window to the east, the house was enlarged, a kitchen added, the interior arrangements altered, a room and bath room added on the second floor, the roof carried up so as to make two rooms in the third story, instead of an unfinished attic, as it formerly was, new windows cut in the east wall, etc. etc., so that the house, as reconstructed, was worth $ 10,000. On the twenty-fourth of October, 1893, Silva gave a deed of trust covering the land and house, to Overall, as trustee for the Rainwater-Bradford Hat Co., to secure an indebtedness of $ 5,000.
The work of reconstruction was begun about July 15, 1893. On the eleventh of November, 1893, Reader filed a mechanic's lien against the land and house for the work done and materials furnished by him between August 29 and October 14, 1893. On the twenty-third of November, 1893 the land and house covered by the third deed of trust dated January 19, 1892, to Rutledge, trustee for Bradford, was regularly foreclosed, and Andrew J. Naughton became the purchaser. On the twenty-ninth of November, 1893, Reader brought suit to enforce the mechanic's lien, making Silva, Donovan, Giraldin, Overall, Rainwater-Bradford Hat Co., Rutledge, Bradford, Naughton...
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