Russell v. Grant

26 S.W. 958, 122 Mo. 161, 1894 Mo. LEXIS 51

• Court: Supreme Court of Missouri
• Decided: May 24, 1894
• Status: Published

Opinion

Sherwoob, J.

I. Our statute in relation to mechanics’ liens provides that: “The lien for the things aforesaid, or work, shall attach to the buildings, erections or improvements for which they were furnished or the work was done, in preference to any prior lien or incumbrance or mortgage upon the land upon which said buildings, erections, improvements or machinery have been erected or put; and any person enforcing such lien may have such building, erection or improvement sold under execution, and the purchaser may remove the same within a reasonable time thereafter.” E. S. 1889, sec. 6707.

“The lien for work and materials as aforesaid shall be preferred to all other incumbrances which may be attached to or upon such buildings, bridges, or other improvements, or the ground, or either of them, subsequent to the commencement of such buildings or improvements.” E. S. 1889, sec. 6711.

“In all suits under this article the parties to the contract shall, and all other parties interested in the matter in controversy or in the property charged with the lien may, be made parties, but such as are not made parties shall not be bound by'any such proceed-' ings.” E. S. 1889, sec. 6713.

Under the first quoted section, the priority of a mortgage on the land, would still allow the mechanic lienor a priority over the improvements put upon the land, while by the terms of section 6711, a mechanic’s lien would enjoy preference and priority both as to land and improvements over a subsequent mortgage. But whether the mechanic’s lien have priority of the mortgage or vice versa, the necessity for the lienor when -proceeding to establish and to foreclose his lien (for the process is a tioo fold one) to make the mortgagee a party would seem to be most obvious. And this is true, notwithstanding the singularly worded provisions of section 6713 supra.

That no one can be passed on in person or estate without an opportunity afforded him to be heard, is axiomatic. If the section in question had been entirely silent as to making parties to- the proceedings other than those who are parties to the contract, still the law ■would intend that such non contracting parties, should he brought in before their rights could be passed upon. Cases abound in this state and elsewhere announcing this fundamental and wholesome doctrine of the essential nature of notice to the party to be affected, and that that notice will be implied, though the statute be silent on the point. Laughlin v. Fairbanks, 8 Mo. 370; Wickham v. Page, 49 Mo. 526; Brown v. Weatherby, 71 Mo. 152; State ex rel. v. Board of Equalization, 108 Mo. 235; State ex rel. v. Walbridge, 119 Mo. 383; Sutherland on Stat. Construction, sec. 334, and cases cited. Provision for notice is part and parcel of “due process of law.” Cooley on Taxation [2 Ed.], 363, .364.

In Hassall v. Wilcox, 130 U. S. 493, a ruling was made quite apropos the point in hand; there the state law made no provision for notice to other lienholders, but provided that such lienholders might ’ intervene -and become parties to a’ suit instituted in the state court, and gave the holder of a mechanic’s lien priority over all other liens, and though a suit was brought .in the state court and judgment recovered by the mechanic lien holder against the railroad property, yet it was held that as to a plaintiff lienor under a mortgage not made a party to such proceeding, the judgment in the state court could not operate even as prima facie evidence against the mortgage lienor, and might be questioned by him in the federal court in a proceeding in that court to foreclose the mortgage. In that case the former ruling of Windsor v. McVeigh, 93 U. S. 274, is cited with approval, where it is held that even in a proceeding in rem some form of notice is as essential and indispensable as in other cases.

Take the case of a mortgagee who holds a mortgage on certain land; afterwards a building is erected thereon, and a lien paper is filed against that building. If that lien paper is in any sense invalid or suit be not brought thereon in time, then the mortgagor becomes the absolute owner of the building, subject, however, to’the rights of the mortgagee who has rights superior to those of the lien debtor, and, therefore, has a right to be heard when the mechanic’s lienor attempts to establish his lien against the building or against both building and land and to foreclose the same; because, peradventure, he may be able to show invalidating facts, to wit, that the lien paper was not filed in time; that it was not properly itemized; or not properly authenticated; or suit not brought within the proper time. All these and other invalidating facts are opep to the mortgagee, whether prior or subsequent, to prove. If he prove any one of them, he defeats the establishment of the lien, and also its foreclosure. In order that he may do this, an opportunity to be heard is a sine qua non, and must be given him. Unless this opportunity be afforded him, he is not “’bound,” that is, “affected” thereby, or as said by Wagner, J., in similar circumstances: “As Clark (the beneficiary) was not made a party to the proceedings for the enforcement of the mechanic’s lien, he was a stranger to them, and they have no force or effect upon him.” Crandall v. Cooper, 62 Mo. loc. cit. 480.

In this connection it is proper to remark that a mechanic’s lien is wholly unlike a contract lien, in that the former is inchoate, and has no existence until established by the judgment of the court, but the contract lien binds upon being delivered and recorded. The contract lien can not be gainsaid; it dates from its registry; while the mechanic’s lien dates from the date of the rendition of the judgment which establishes it and into which it becomes merged. In order to prevent the establishment of this lien, in order to show it can not legally be established on property in which he is interested, and of. which he is the conditional, and may become the absolute, owner, the mortgage lienor has a right to be heard. In the language- of Judge Richardson in Clark v. Brown, 25 Mo. 560, in a similar case, “the law repudiates the idea of condemning the property of one man to pay the debt of another, without giving him an opportunity in court, upon due service of process, of showing that the claim ought not to be asserted against his property.”

The latter portion of the opinion in Crandall’s case has given rise to some misapprehension, to wit: “The purchaser might have bought the erections'and improvements freed from all liens, and would have been entitled to recover them, and this is all that he could have acquired.” This remark, in the first place, was obiter, because the purchaser had not bought the improvements. The case had already been disposed of on a contract basis, and what Judge Wagner evidently meant, having previously referred to the statute requiring notice, was this: “If Clark had been a party to the lien suit, he would have been bound thereby and the purchaser might have bought the improvements, etc.” Construing the casein this way, it gives effect to section 6713, in its entirety, and prevents any intended or attempted wrong, and affords fio opportunity for the perpetration of any injustice.

And in this connection it is well enough -to say that the fact that the prior mortgage lienor had previously bought in the property under the deed of trust, does not diminish his right to be heard when the suit to establish and foreclose the mechanic’s lien comes on, because, even then, he has a right to be heard in order that' he may protect his property from the assertion and establishment of an unjust or nonexistent lien.

The doctrine in Crandall’s case, affirmed in Coe v. Ritter, 86 Mo. 277, has recently been reaffirmed by division number 1 of this court in Hicks v. Scofield, 121 Mo. 381.

II. In the foregoing remarks the lien of Harkness & Russell has been treated as the prior one, and so it should be treated, and for these reasons:

a. Under the provisions of section 6706, Revised Statutes, 1889, the mechanic’s lien attaches “to the extent and only to the extent of all the right, title and interest otoned therein ly the otvner,” etc. In the case at bar, as already seen, the deed to Harford was nevpr delivered to him, but all the deeds from Holmes to Groodin, from the latter to Harford and the deed of trust from the last named to Harkness ■& Russell, were all handed Harkness & Russell on the sixth of October, 1888, who, on the eighth of October next thereafter, handed them all to the recorder for recording. Harford never acquired any title before that time. It does not clearly appear when the first load of lumber was delivered on the premises by the Interstate Lumber Company; the best that can be said about it is,.that it was delivered about 9 A. M. on the same.morning the-deeds were put to record. If this delivery of the first lot of lumber was before Harford acquired any title to the property, though work on the premises had •actually begun, the lien of the mechanic would postdate a mortgage given for the purchase money; and of course the same result would follow if the mortgage were really prior in point of time. Steininger v. Raeman, 28 Mo. App. 594.

And it seems that a mechanic’s lien under the terms of section 6706, only attaches to the property in the condition. in which it comes into the mortgagor’s hands. If he purchase .property and give a mortgage for the purchase money, the deed which he receives and the mortgage which he gives, constitute but one transaction, and the lien of the mortgage for the purchase money can not be displaced or postponed by a mechanic’s lien which attached simultaneously with the acquisition of title by the mortgagor. 1 Jones on Mortgages, sec. 158; United States v. Railroad, 12 Wall. 362; Steininger’s case, supra.

b. But further on this point: “If a husband takes a conveyance in fee, and at the same time mortgages the land back to the grantor or to a third person to secure the purchase money, either in whole or in part, such a transitory seisin by the husband, the instantaneous passage of the fee in and out of him, is not •deemed enough to render him sufficiently and beneficially seized to entitle his wife to dower as against the mortgagee, though on foreclosure of the mortgage, she will be entitled to such portion of the surplus proceeds -of the sale after satisfying the mortgage, as equals her claim to the extent of her dower. 4 Kent’s Com. [13 Ed.], star p. 39. Now, if dower, the favored and favorite estate both at law and in equity, can not attach, in the circumstances stated, to the temporary seizin of the husband, certainly a like result should follow where a lien in invitum, one strictly statutory in its nature and limited by the terms of the statute to the precise extent of the owner’s title, is attempted to •be established.

c. In‘this’ case, as heretofore stated, the Interstate Lumber Company after recovering a judgment estab-' lishing and foreclosing its lien against both the lots and the improvements, would not sell under the judgment thus obtained, but at a subsequent term caused that judgment to be altered, so as to establish the lien against the improvements only. This modification, however unwarranted it was, and contrary to all known rules of practice and procedure, must be treated as a tacit but substantial confession of record of the fact that the plaintiff company in that case was only entitledto a lien against the houses, and thereby confesses the priority of the mortgage lien under which plaintiff bought.

III. No valid judgment can be rendered establishing and foreclosing a mechanic’s lien, unless the contractor is brought, or voluntarily appears, before the court as a party to the suit. This was not done in this ■case, because of lack óf proper service on Harford, both the contractor and owner of the property. R. S. 1889, section 6713.

In Wibbing v. Powers, 25 Mo. 599, Judge Scott •said: “The contractor is the only person who can contest the validity of the demand; and as the proceeding was dismissed as to him, there was no person to defend the claim of the plaintiff. This case is as if a creditor, proceeding by attachment and garnishment, should dismiss his suit against the defendant — the ■debtor — and afterwards take steps against the garnishee, when there could be no*judgment which he could be condemned to satisfy.” See, also, Ashburn v. Ayres, 28 Mo. 77; Steinmann v. Strimple, 29 Mo. App. 478; Wescott v. Bridwell, 40 Mo. 146.

Here the service on Harford was made in Kansas, professedly under the provisions of section 2029, Revised Statutes, 1889. But the return of the sherff of that state, is not sufficient under the provisions, of the section ■of the statute just mentioned. That section requires that the affidavit of service should be made “before the clerk or judge of the court of which affiant is an officer.” This clause is not to be found in the affidavit, and of course it is a nullity and the return of service worthless; and since the judgment against Harford was by default, the circuit court was without jurisdiction to render any judgment in the case. The invalidity of the return of an officer made outside of this state must accomplish equally as detrimental re-suits as -within this state, and, when made within this state, it has been ruled in several cases, that a judgment based thereon is null. Brown v. Langlois, 70 Mo. 226, and cases cited.

IV. It has been urged that the plaintiff can not attack collaterally the judgment rendered in the mechanic’s lien suit. But there is no doubt that a stranger whose interests are about to be prejudiced by the enforcement of the judgment, may show that it was rendered without jurisdiction. 2 Freeman on Judg. [4 Ed.], sec. 337; 1 Ibid., sec. 154. Besides, a judgment can not bind the rights of a stranger. Ibid., sec. 154; 1 Black on Judgments, secs. 218, 219, 220.

V. Something has been said about the proceeding to enforce a mechanic’s lien being one in rem, but this is incorrect. This is a proceeding inter partes and so appears by the record itself. 2 Freeman on Judgments, sec. 606, and cases cited; Dunphy v. Riddle, 86 Ill. 22.

But if ©ven if such were the nature of the proceeding, it would bind no one not made a party to it and would not be even prima facie evidence against such non-notified person. Hassall v. Wilcox, 130 U. S. 493; Windsor v. McVeigh, 93 U. S. 274, supra.

There are numerous other and fatal errors which might -be noted in the proceeding which plaintiff was successful in enjoining, but it is quite unnecessary to do so. Decree affirmed.

All concur.