Witt v. Smith

• Decision Date: 31 October 1876
• Citation: 63 Mo. 263
• Parties: C. DE WITT, et al., Appellants, v. H. D. SMITH, et al., Respondents
• Court: Missouri Supreme Court

63 Mo. 263

C. DE WITT, et al., Appellants,

v.H. D. SMITH, et al., Respondents

Supreme Court of Missouri.

October Term, 1876.

Appeal from Jackson Circuit Court.

Karnes & Ess, for Appellants.

The amended statute requires a true description of the property, or so near as to identify the same. (Wagn. Stat. 909, § 5.)

In Williams vs. Porter (51 Mo. 441), it was a legal impossibility to enforce the lien, because there was no “attempt to describe the acre of land intended to be covered by the lien.” No judgment could have been rendered, as no acre had been named to which the lien could attach. In Matlack vs. Lare (32 Mo. 262) there was the same difficulty. In the case at bar the petition asks the enforcement of the lien against lots 19 and 20 in block 20. The execution would be against that property to enforce a lien for materials actually used in that identical property. And Schell could not complain, as he was notified before the lien was filed, that the material had been furnished for this property.

The policy of the mechanic's lien law is beneficient, and it must be construed liberally, so as to advance the remedy, and not merely in the strictness of the letter. (Oster vs. Rabnare, 46 Mo. 595: Putnam vs. Ross, 46 Mo. 337.)

W. E. Sheffield, for Respondents.

The description is not sufficient. The statute (Wagn. Stat. 909, § 5) refers to the land as well as the building. But that in the statement of the lien in the present case only designates the building as a “three story brick building,” and totally misdescribes the land.

The affidavit is not that “the description of the property is correct,” but that “the above is a true description of the building,” etc. The affidavit may be true, and yet, non constal but that the building may be located elsewhere than in block 20.

WAGNER Judge, delivered the opinion of the court.

This was an action for the enforcement of a mechanic's lien, and was tried in the court below upon an agreed statement of facts.

It appears that Schell, the defendant, was the owner of lots 19 and 20, in block 20 of Ashburn's addition to the city of Kansas, and that he contracted with one Smith to build upon one end of said lots a three story brick building.

Plaintiffs furnished the brick for the building, and the contractor Smith being indebted to them therefor in the sum of $281.00, they gave notice to the defendant of the demand, properly and accurately describing the property. Afterwards and in due time a lien was filed with the clerk for the amount so claimed, which described the building as situated on lots 19 and 20 in block 2 in Ashburn's addition to Kansas city, thus misdescribing the block which should have been twenty instead of two. The petition properly describes the property and asks for the enforcement of the lien on lots 19 and 20 in block twenty.

The court held that the mistake in the number of the block in the paper filed with the clerk was fatal, and gave judgment for the defendant.

It is admitted in the agreed statement that the bricks were furnished by the plaintiffs and placed in the building; that they were never paid for by the contractor Smith, and that Schell, the defendant, owned no other lots in Ashburn's addition to Kansas city than 19 and 20, in block 20, and that he never owned any lots in block two.

The statute requires that in order to obtain a lien there should be filed “a true description of the property, or so near as to identify the same, upon which the lien is intended to apply, with the name of the owner, or contractor, or both.” (Wagn. Stat. p. 909, § 5.)

As to what will be regarded as a sufficient description to sustain a mechanic's lien the general rule seems now to be, that if there appear enough in the description to enable a party, familiar with the locality, to identify the premises intended to be described with reasonable certainty, to the exclusion of others, it will be sufficient.

There is great reluctance to set aside a mechanic's claim merely for loose description, as the acts generally contemplate that the claimants should prepare their...