Wilson v. Lubke

• Decision Date: 20 June 1903
• Citation: 75 S.W. 602,176 Mo. 210
• Parties: WILSON v. LUBKE.
• Court: Missouri Supreme Court

75 S.W. 602

176 Mo. 210

WILSON v. LUBKE.

Supreme Court of Missouri, Division No. 1.

June 20, 1903.

MECHANICS' LIENS — ATTACHMENT — PURCHASE OF LAND — PRIORITY — JUSTICES OF THE PEACE — JURISDICTION — JUDGMENTS — RES JUDICATA — FORECLOSURE OF LIEN — SALE OF BUILDINGS — REMOVAL.

1. Where a subcontractor, claiming a mechanic's lien for materials furnished, delivered a part of such materials before the property had been conveyed to the purchaser, who had contracted for the erection of the buildings, his contract for the materials could not relate back beyond the date of the purchase of the land, so as to impair the rights of the vendor under a mortgage given to secure a part of the purchase price.

2. Where a justice of the peace in an action to foreclose a mechanic's lien had no jurisdiction to decide the question of the priority of the mechanic's lien and a purchase-money mortgage on the land, a finding in his judgment that a delivery of the materials for which the mechanic's lien was claimed began on June 29, 1897, and that the purchasers of the land who had contracted for the buildings were then the owners, was not res judicata of the question when the purchasers acquired title to the land.

3. Under Rev. St. 1899, § 650, providing that, in an action to quiet title, the court shall define and adjudge by its judgment or decree the title, estate, and interest of the parties severally in and to the real property, where the court found that a mechanic's lien was entitled to priority over a mortgage for purchase money as to the buildings, but was subsequent to such mortgage as to the land, the court had no jurisdiction to ascertain the amount of the mechanic's lien, and charge the same as an incumbrance on the buildings, with a right to the owner of the land to pay the same within a given time and redeem the property.

4. Rev. St. 1899, § 4205, provides that mechanics' liens shall attach to the buildings for which materials were furnished, in preference to prior liens or mortgages on the land, and any person enforcing such a lien may have the buildings sold under execution, and the purchaser may remove the same within a reasonable time thereafter. Held, that where buildings had been sold under foreclosure of a mechanic's lien, and the purchaser had received his deed therefor, the court, in an action to quiet title between the owner of the land and the owner of the building, had no power to fix the amount due under the mechanic's lien, and authorize a removal of the buildings only in case of the landowner's failure to pay the same within 30 days.

Appeal from St. Louis Circuit Court; P. R. Flitcraft, Judge.

Action by Asa B. Wilson against George W. Lubke, Jr. From a judgment in favor of plaintiff, defendant appeals. Reversed.

W. Christy Bryan, Willi Brown, and Geo. W. Lubke, Jr., for appellant. Rassieur & Rassieur, for respondent.

VALLIANT, J.

This is a suit, under the statute, to quiet title to real property. Section 650, Rev. St. 1899. Plaintiff claims as purchaser at a foreclosure sale under two deeds of trust. Defendant claims as purchaser at a sheriff's sale under execution upon two judgments establishing mechanics' liens. The question is, which was the prior lien? The facts are as follows: On June 30, 1897, one Laumeier sold the east half of the lot in question to Ida M. Smith, and the west half to John M. Houser and wife. At the same time Ida M. Smith executed back to Laumeier a deed of trust on the half of the lot sold to her to secure her notes to him for $4,000 and interest, and Houser and wife likewise executed back to Laumeier a deed of trust on the half sold to them to secure their notes for a like sum and interest. The notes covered the purchase money of the lot, and money advanced by Laumeier to build houses on the same. The deeds from Laumeier to Smith and Houser, and the deeds of trust from them back to him, were all executed and filed for record at the same time, on June 30, 1897. On September 28, 1898, those deeds of trust were regularly foreclosed. The plaintiff became the purchaser and received the trustee's deeds. That is the plaintiff's title. Before Ida M. Smith and Houser and wife purchased the lot from Laumeier, but in contemplation of such purchase, they made a contract with one Claus for the erection of certain buildings on the lot. Claus conducted the negotiations for Smith and Houser in the purchasing of the lot, and, without waiting for the completion of the purchase, and without the knowledge of Laumeier, began excavation for the buildings on the 28th of June, and sublet the millwork to the Tower Grove Planing Mill Company, which concern began delivering the material for the buildings on the ground on June 29th, which was one day before the consummation of the purchase of the lot by Smith and Houser from Laumeier, and one day before the execution and delivery of the deeds above mentioned. Shortly after the execution of the deeds, Laumeier delivered the money he advanced for the buildings to Claus, who, as already said, was acting in the matter for Smith and Houser, so that Claus, the contractor, received the contract price of the buildings in advance. The Tower Grove Planing Mill Company, beginning on June 29th, continued to deliver materials, which were used in the buildings up to September 18, 1897. After giving due notice, that concern on January 6. 1898, filed two mechanics' liens (one against each building), for $310 each, and on January 8th filed suits in a justice's court to enforce the same (one against Ida M. Smith, and the other against Houser and wife). Claus and Laumeier were made parties defendant in both suits. There was a judgment for plaintiff in each suit for $317.75 and costs, which was a personal...