Waldermeyer v. Loebig

• Decision Date: 20 June 1904
• Citation: 183 Mo. 363,81 S.W. 904
• Parties: WALDERMEYER v. LOEBIG et al.
• Court: Missouri Supreme Court

81 S.W. 904

183 Mo. 363

WALDERMEYER v. LOEBIG et al.

Supreme Court of Missouri, Division No. 1.

June 20, 1904.

ADMINISTRATORS—IMPROVEMENT OF REAL ESTATE — TRUST DEED — VALIDITY — MECHANICS' LIENS — SUBROGATION.

1. Where the probate court directed the administrator of an estate to borrow money and complete a building which had been commenced by the decedent, and for the construction of which no contract existed at the decedent's demise which could be carried out, the person loaning the money could be subrogated only to such rights as the contractors had; and, as no legal basis existed for the establishment of a mechanic's lien, he acquired no rights by subrogation to any such lien.

2. Where the probate court directed the administrator to borrow money to complete a building, and to execute a trust deed on the premises, the work not being of the character contemplated by Rev. St. 1899, §§ 100, 101, authorizing the employment of labor to preserve the estate, the trust deed was void, and was properly canceled.

Appeal from St. Louis Circuit Court; Seldon P. Spencer, Judge.

Bill by Henry Waldermeyer against Therese Loebig and others. From a judgment for plaintiff, defendants appeal. Reversed.

Rassieur & Buder, Schulenburg & Meyer, and A. C. F. Meyer, for appellants. J. H. Trembley, Klein & Hough, and Wm. Zachritz, for respondent.

MARSHALL, J.

This is a bill in equity for a subrogation, or for the establishment of an equitable lien of $9,439.16 upon house No. 1812 South Broadway, in the city of St. Louis. The circuit court charged the property with a lien for $8,450.78, with interest at 6 per cent. from March 8, 1902, and ordered the property sold to pay the same if the said amount was not paid within 90 days. The trial developed the facts to be as follows: Prior to May 27, 1896, John Loebig owned the property, being a lot of ground in city block 711, at the northeast corner of Broadway and Geyer avenue, on which was situated house No. 1812 South Broadway. On that day the house was damaged by the cyclone that struck St. Louis at that time. The house was a three-story building. The first floor was used as a saloon. The second floor was used by the owner as a residence for himself, his wife and children. The third floor was fitted up and rented as a lodgeroom. The house was not rendered untenantable by the cyclone, for the family continued to reside in it, but the roof was injured, and the house was otherwise damaged. The total damage amounted to some $1,500. The house and lot before the cyclone were worth about $7,600. After the cyclone, the owner, Loebig, sent for one Louis Horman, and had him prepare a sketch and estimate for not only repairing the damage to the building, but also for remodeling it, and for building a new three-story addition to it on its rear. No written contract was made therefor with Horman. The plaintiff's theory is that Horman became the general contractor, and that the other persons who did work and furnished materials were the subcontractors, but there is no substantial evidence to support that view of the case, for Horman testified — and there was no countervailing testimony — that he never was the general contractor, but that he was contractor for a part of the work, and was superintendent of the work, and that Loebig directed him to employ other contractors to do the other parts of the work, and that some of them were so employed before Loebig's death, and some of them he employed after Loebig's death, because the widow begged him to have the work finished, and that he gave the work to the persons whom Loebig had promised it to. Loebig died on August 18, 1896. At that time comparatively few contracts for the work had been made, and only about $650 worth of work and materials had been done or furnished. After his death, work and materials were done and finished, upon the order of Horman, amounting to about $8,000. Horman's claim for the work done by him amounted to $2,109.45, and it was done between July and December, 1896, but the amount thereof which was done prior to Loebig's death is not separately stated. Loebig paid only $100 in his lifetime on account of the work. After his death the widow paid $408. On October 1, 1896, D. I Neudorf was appointed administrator of the estate, and also curator of the three minor children, one of whom has since died. On October 9, 1896, Neudorf obtained an order of the probate court directing him to take charge of the real estate, and also to complete the work of reconstructing said building; he representing to the court that it would cost about $5,500 to do so. The administrator then proceeded to have the work of reconstructing the building completed, which was done by December. The contractors and materialmen wanted their money, and were threatening to file mechanics' liens. A consultation was held between them, Neudorf, and the widow, with the result that it was agreed that Horman should make out claims against the estate for the amounts of the several contractors, and should assign to each a claim equal to the amount of his claim, and they should all be proved up against the estate of John Loebig. This was done, and claims aggregating more than $9,000 were proved up by the several parties against Loebig's estate on January 8, 1897. On January 19, 1897, Neudorf, as curator of the minors, procured an order from the probate court authorizing him to borrow $7,000, to be secured by a deed of trust on the property, and to use the same to pay said claims. Accordingly, on February 15, 1897, Neudorf borrowed $7,000 for five years, at 6 per cent. interest, from the plaintiff, and secured it by a deed of trust on the property, which recited that Neudorf was acting by virtue of the said order of the probate court. The widow joined in the deed of trust. The money thus borrowed by Neudorf as curator was turned over to himself as administrator, and by him, in his latter capacity, used to pay said claims. Default was made in the payment of the fifth installment of interest, and on April 25, 1900, the deed of trust was foreclosed, and the plaintiff became the purchaser of the property for $9,100, and received a deed therefor. He demanded possession, which being refused, he instituted an action of ejectment against the widow and the minor heirs. He was defeated in that case, the circuit court holding that the order of the probate court authorizing the curator to borrow the $7,000, and the deed of trust, and the plaintiff's deed resulting from the foreclosure thereof, were void. There was no appeal from that judgment. The plaintiff then instituted this suit in equity against the widow, the two surviving minor heirs, and the trustee under the deed of trust, who had the surplus arising from the sale of the property over the debt secured in his hands. The trustee paid said surplus, amounting to $1,662.75, into court, and took no further steps in the case. The circuit court entered a decree for the plaintiff for $8,450.78, with 6 per cent. interest from March 8, 1902, charged the property with a lien for that amount, and ordered it sold to satisfy the same...