Waters v. Gallemore
| Citation | 41 S.W.2d 870 |
| Decision Date | 04 May 1931 |
| Docket Number | 17156 |
| Parties | John S. Waters, James W. Miles, John Green, W. H. Snyder, and John C. Tedford, Respondents, v. Cecil R. Gallemore, Anna Belle Gallemore, R. v. Bartow, and A. L. Friesz, Trustee, Appellants, Albert Headinghouse and Frank J. Headinghouse, doing business as Headinghouse Brothers' Lumber Company, a Partnership, Defendants and Respondents |
| Court | Court of Appeal of Missouri (US) |
Appeal from Randolph Circuit Court.
Affirmed.
Opinion by John S. Boyer, Commissioner. Campbell, C., concurs. All concur except Trimble, P. J., absent.
Action to establish liens of mechanics and material men and to determine the interest of parties and the priority of claims. The case was tried and determined as one in equity. The court found for plaintiffs and for defendant lumber company rendered judgment in their behalf against defendant Cecil R Gallemore, and adjudged their claims to be superior liens against two certain buildings and tracts of ground described. It was further ordered that the lien claimants share pro rata in the proceeds of the property and that general and special execution or either may issue. The court found that Cecil R. Gallemore had such interest in the property as to constitute him owner thereof within the meaning of the law; that Anna Belle Gallemore had no interest therein, and that the lien claims were superior to a deed of trust conveying the ground to Friesz as Trustee for Bartow. From said judgment appellants bring the case here and assign many alleged errors. A proper understanding of the case and of the points made on appeal calls for a history of the development of the action and of the alleged interests of the various parties.
The evidence is conflicting on some of the issues, but that favorable to the lien claimants and which supports the finding and conclusion of the trial court shows the following facts: About the first of April 1929, one Holloway held the legal title to a certain tract of ground which he had acquired in the settlement of a debt due one McAfee or his company. Holloway executed a deed conveying the property in question to an un-named grantee and sent it to a trust company for delivery to McAfee, or to any one named by him, upon the payment of $ 75. McAfee was authorized to insert his own name or that of another as grantee. About the first of April, McAfee sold the ground to defendant Cecil R. Gallemore who was then placed in possession of the ground and was authorized to take up the deed as grantee upon payment by him of the sum required. Shortly thereafter McAfee introduced Gallemore to the proprietors of the lumber company as the owner of the ground, and Gallemore stated that he was the owner of the ground and desired to erect some buildings thereon and to arrange with the lumber company to furnish the necessary material. As a result of arrangements made between Gallemore and the lumber company, lumber and material were furnished for the construction of two buildings. The first material was furnished on May 10, and at various subsequent dates to September 25. The material necessary for each building was to be paid for upon the completion of the building. The second building was begun before the first was completed. Defendant Gallemore paid nothing. He claims that the material was not to be paid for until the buildings were sold or a loan obtained upon them.
After contracting for the lumber, defendant Cecil R. Gallemore entered into separate contracts with the individual plaintiffs to perform work and furnish material for the houses, and under said contracts plaintiff Waters did the masonry work; Green the carpenter work; Miles the plastering; Snyder the painting, and Tedford the plumbing. Plaintiff Waters began his work about June 22, and the other plaintiffs began their work on and after July 10, and completed same in accordance with their contracts. Defendant Gallemore failed to pay them anything.
On June 26, Cecil R. Gallemore paid the sum of $ 75 to the trust company and took the deed which had been left in its custody, and which under his evidence remained in the trust company from the time he purchased the property subject to his option to take it at any time. He retained this deed to the time of the trial, but it does not appear that he inserted any name as grantee or recorded the deed. Gallemore desired to divide the tract of ground into three lots, had it so divided by survey, and on the date last named requested and obtained from Holloway, who had executed the previous deed, three quit claim deeds each conveying one of the three separate lots into which the land had been divided to Anna Belle Gallemore, the wife of her co-defendant Gallemore. On the following day, June 27, the Gallemores executed a deed of trust covering the three lots to A. L. Friesz, Trustee for defendant R. V. Bartow, to secure a note in the sum of $ 1000. This deed of trust and the three quit claim deeds were then recorded. Anna Belle Gallemore paid no consideration for the deeds in which she was named as grantee and had no knowledge, according to her own evidence, of their existence or that she had any title or interest in the land until after the first building was completed and the second one begun, and when she received a bill for water issued to her. She was then informed by her husband that she was the owner.
The owners of the lumber company filed their lien account December 13, 1929, and thereafter on the same day filed their petition and instituted suit against defendants C. R. Gallemore, as owner of the property, and R. V. Bartow, as owner of the note secured by the deed of trust, to establish a special lien upon the real estate and its priority over the lien of the deed of trust. The named defendants filed answer to said suit.
On October 9, 1929, plaintiff Green filed a lien account alleging ownership of the land in Anna Belle Gallemore and that the work was done under contract with Cecil R. Gallemore, her agent. Each of the other plaintiffs filed similar lien accounts on October 10, 1929, and thereafter on December 23, 1929, all of the plaintiffs filed an additional and separate lien account alleging that the work and labor done and material furnished was under contract with both Gallemores and that the land and buildings belonged to Cecil R. Gallemore and Anna Belle Gallemore. Each plaintiff filed a separate lien account against each building and the lot of ground on which it stands. On January 3, 1930, plaintiffs filed two suits to establish and enforce their liens against the two separate houses and tracts of ground as first liens upon the premises and improvements and prior to the lien of the deed of trust. All of the appellants were made parties to these suits and all parties in interest were thus joined except the lumber company which had previously filed suit in the same court, and it was still pending. The lumber company was later made a party defendant in plaintiffs' suits by amended petitions filed by them June 7, 1930. On July 1, 1930, the lumber company filed answer and cross-petition in each of the suits instituted by plaintiffs. All of the appellants filed answer to the counterclaims of the lumber company. Thereafter on July 3, 1930, the two suits were consolidated for trial which resulted in the finding and judgment heretofore indicated.
OpinionAppellants present an omnibus assignment containing a list of alleged errors to the number of 21, which are condensed under points and authorities to only 19. Many of the assignments, as well as statements under points and authorities, are insufficient to designate any error committed by the court. Before an assignment or point can claim attention it must be sufficiently definite to indicate how and why the court erred. An assignment of any other character is useless. We will give attention to all claimed errors which are presented properly in the brief. The remainder will be treated as abandoned.
Appellants contend that the plaintiffs lost their right of lien because they were journeymen and were required to give ten days' notice before filing liens, and as such were required to file their lien accounts within sixty days after the indebtedness accrued; that no suit was instituted by the plaintiffs within ninety days after the first lien accounts were filed and that the filing of the second lien accounts on December 23, was an abandonment of the lien claimed by each of them, and that the lumber company, being a party in interest, was not made a party to the suit within ninety days from the date of filing the lien accounts. It is also claimed that all of plaintiffs but one began their work subsequent to the date of the deed of trust which is a superior lien; that Anna Belle Gallemore is the owner of the property and plaintiffs failed to show any right of lien against her property. It is also urged that the lumber company lost its right of lien and right of priority against Anna Belle Gallemore and Bartow, the beneficiary under the deed of trust, because plaintiffs did not make the lumber company a party to the suits within ninety days after filing the lien accounts, nor were plaintiffs made parties to the lumber company's suit within said period; that the petition of the lumber company was not filed after the filing of...
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