Williams v. Porter
| Decision Date | 31 January 1873 |
| Citation | 51 Mo. 441 |
| Parties | GEO. WILLIAMS Respondent, v. J. J. PORTER, et al., Appellants. |
| Court | Missouri Supreme Court |
Appeal from Johnson Circuit Court.
Hunter, Johnson & Wright, for Appellants.
I. A true description of the property, or so near as to identify the same was not filed with the clerk, nor even stated in the petition. (Matlack vs. Lare, 32 Mo., 262.)
II. The petition only prays for a judgment against Porter, and for the amount which is alleged to be due by Porter alone, and for a lien on Gray's house, and one acre, and that without describing the acre; yet the judgment, or rather decree, is jointly against both Porter and Gray--and for the sale of the house and land in the first instance. This judgment as against Gray was without authority by law, and should have been arrested. (2 W. S., 910, § 14.)
III. The court erred in refusing to permit the jury to try the issue of facts as to the lien. (2 W. S., 1040, § 12.)
Birdseye & Wight, for Respondent.
This record seems to present a comedy of errors.
It was an action on an alleged mechanics lien by the plaintiff as sub-contractor under the defendant Porter, for a balance on the plastering of a two story house which Porter had agreed to build for Gray.
The statement filed by the plaintiff, claiming a lien on the property of Gray, contains no such description of the property as the statute requires. The statute, (2 W. S., 909, § 5) provides that there must be a true description of the property, or so near as to identify the same, upon which the lien is intended to apply. The description in this statement is “a two-story frame dwelling house” “on the north-west quarter of the south-east quarter of Section 11, Township 35, Range 31, in the county of Vernon, in the State of Missouri.”
The statute (1 W. S., 907, § 2,) gives a lien on the building and the land on which the same is situated, if in the country, to the extent of one acre, if in town, on the lot on which the building is located. The object in filing the lien, is to give notice what land or property is covered by it. And therefore, the acre of ground must be identified by a true description, or so near a true description as to identify it. There is nething in this description to show in what part of the land the house in question is located, nor any attempt to describe the acre of land intended to be covered by the lien. There being no proper description, no lien was created. (Matlack, et al., vs. Lare, 32 Mo., 262.) As there was no lien to enforce, there could be no cause of action against Gray, and the petition...
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