Schulenburg & Co. v. Gibson

15 Mo. 281

• Court: Supreme Court of Missouri
• Decided: October 15, 1851
• Status: Published

Opinion

Gamble, J.,

delivered the opinion of the court.

The only question to be determined in this case is, whether a person furnishing materials for a building in the county of St. Louis, under a contract with the owner, is bound to file his lien within six months from the time his demand accrues in order to charge the building with alien.

There is probably no part of the law, in which more confusion exists in consequence of legislation, general and local, than on the subject of liens in the county of St. Louis.

The act of 1835 Revised Code 108, gave liens to those who furnished materials or worked upon buildings under contracts with the proprietor. This act was general, operating throughout the State. It provides that the account which was claimed to be a lien, should be filed within six months after the demand accrued. It directd the clerk to provide a book and make an abstract of the liens filed, and a description of the property charged therewith. The mode of enforcing the lien, by an ordinary action or by scire facias, is provided, and the effect of the judgment and the form and effect of the execution are substantially prescribed. The time, within which the action must be brought upon the lien, is not prescribed, but it is provided in the 8th section,that no lien shall bind a building for a longer period than twelve months after the building is finished, unless a suit shall have been brought on it in the manner prescribed in the act.

The act of February 16th, 1841, was an act to amend the act of 1885,- and was likewise general in its operation. By it liens were given to sub-contractors for work and labor and for materials. Provision was made, for notice to he given to the owner of the building, by the person performing the work or furnishing the materials previous to performing it, or furnishing the materials, of his intention to do so and of the probable value thereof, and the person wishing to impose the lien, was allowed to settle with the contractor and ascertain by such settlement the amount due for the work and materials, one copy of which was required to be given to the owner of the building; and when the Hen was to be imposed, a duplicate of the settlement was required to be filed by the sub-contractor, within ten days after the demand accrued, with the clerk of the circuit court. For the duties of the clerk and the mode of proceeding upon the lien, reference is made to the original act of 1835.

The act of February 24th, 1848, which applies alone to the county of St. Louis, opens, in the first section, with declaring who shall have Hens for work done or materials furnished for buildings or other improvements, and extends the liens to persons employed by the owner, agent, contractor or sub-contractor. The 2nd section applies the liens mentioned in the first section, to buildings erected upon leased lots, and subjects the interest of the lessee to liability for the satisfaction of the liens. The 3rd section requires a notice to be gitfen to the owner or his agents, by the person wishing to avail himself of the benefits of the preceding section, that there is such an amount due thereon, and that he intends to hold the building or improvement until the true sum due is paid; a copy of the notice is to be filed with the lien, and the section closes with these words, “but the above limit in regard to notice, shall not extend to persons having contracts with the owner, owners or agent.” The 4th section provides, that it shall be the duty of every person who may avail himself of the benefits of this act, to file with the clerk of the circuit coiyt, within six months after notice shall have been given agreeably tp section third, a just and true account of tlje demand justly due him after all just credits given, which is to be a lien upon such buildings or other improvements, and 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 if known, and if not known, then, in that event which ever may be known to the person filing the lien. The 5th section imposes on the clerk the same duties in regard to liens under this act that ar£ required in all the other acts. The 6th section gives a preference to liens for work and materials over all incumbrances, attaching subsequently to the commencement of the buildings. The 7th section provides “that a person wishing to proceed against property charged with a lien by virtue of the act, may commence his action before a justice of the peace when the amount does not exceed ninety dollars, and when judgment is obtained against the owner, agent, contractor, or sub-contractor as the case may be, a transcript may be filed in the office of the clerk of the circuit court, who shall thereupon issue execution as in ordinary cases, and the sheriff shall immediately proceed to sell the same as other property on executions is sold.” The 8th section provides that in all cases, when the demand shall exceed ninety dollars, the action shall be brought in the circuit court. The 9th section requires that all actions under this act shall be brought within ninety days after filing the lien. The 10th section, like the 8th section of the act of 1835, provides, that “no lien shall bind a building for more than twelve months after the building is completed; unless a suit shall have been brought in the manner provided in this act.” The 14th section repeals “all acts or parts of acts contrary to or inconsistent with the provisions of this act.”

It has been thought best to state the substance of this act in its material provisions in order that there may be an accurate idea of what the law is in the county of St. Louis in relation to liens, by ascertaining how much of the general law remained in force after the passage of this special act. This special act still continues in force within the county of St. Louis, as it and other special laws, operating in St. Lous county, were expressly continued at the revision of 1845.

In the first place it is to be remarked, that by the general tenor of its provisions' and by the limited repeal in the 14th section, this act was not designed to be a complete and full act of‘ legislation covering the' whole ground of mechanics’ liens within the county. It is apparent that much of the system is designed to be left to the general laws: as an instance of this, it provides, that actions for sums over ninety dollars are to be brought in the circuit court, but it does not provide for rendering the act effectual in the enforcement of the lien. The general law authorized a general judgment to be rendered in such action, and that execution should issue “against such proportionable part of the property charged with the lien as the plaintiff’s demand bears to the whole amount of the liens that are charged upon said property under the act, which proportionable part shall be decided by the court, and also against other property of the defendant.” This provision enforced the lien, and it cannot be supposed that the special act was designed to leave persons, having liens in St. Louis county, without the means of enforcing them. The general law must be held still to regulate the remedy and in fact continues in full force in the county in all its provisions not inconsistent with the special law.

The provisions in the third section in requiring a notice to the owner of the property or his agents, that a certain sum is due to the person who has worked on, or furnished materials for the building, and that he intends to hold the building or improvement until the sum is paid, would seem by its own terms, to be applicable only to sub-contractors, and not to the person with whom the owner has dealt in relation to the erection of the building; for as the dealings between the owner and contractor are as much known to one party as to the other, no notice as between them is necessary, either of the amount due or of an intention to claim a lien. But the last clause of this section expressly declares, that the limit as to notice shall not extend to persons contracting with the owner. This language does not imply that there is some notice required between contractor and owner, with a different limitation of time from that fixed in this section, which is thirty days after the indebtedness accrued or completion of the building, but excludes the idea that notice within any given time is required between such parties. This section then in its operation is confined to sub-contractors. As the 4th sec., which directs the acts to be done in order to impose the lien upon the land, requires the demand to be filed within six months after giving the notice, according to the third section, and as it requires that in addition to the description of the property to be charged with the lien, the person filing the demand shall state the ‘iname of the owner or contractor or both if known,” it can apply only to sub-contractors.' This fourth section is the most important part of the act, in showing the class of liens which the act was designed to enforce; for it comprehends in'its directions all that is required to be done in placing the demand upon record in order to charge the property, and these directions are inapplicable to a demand asserted under a contract directly with the owner of the property.

There are some subsequent provisions in the act, in which the language is general, and which may be held to be alterations of the general law; such as the 6th section which gives a preference to the lien for work and materials over all incumbrances, subsequent to the commencement of the building. These subsequent clauses do riot touch the questions arising in this case.

This act leaves the person who performs work or furnishes materials under a contract with the owner, to pursue the general law in imposing the lien upon the property: We have seen that all the directions of this act apply to other persons than the contractor, and consequently the general law is in no sense inconsistent with this act, when it is left to prescribe the course to he pursued by contractors.

Again, although this special act was continued in force at the revision of 1845, any change in the general law, made at the time of that revision, would be operative in the county of St. Louis if not repugnant to or inconsistent with the special act, so that the law regulating the liens, for work done and materials furnished for buildings in the city and county of St. Louis, is to be found in the special act and the revised law of 1845; the special act being the one to be enforced whenever they are inconsistent. Taking the general law then, as the rule governing the proceedings required to impose a lien for work done or materials furnished under a-contract with the owner, we find'that the person who furnishes materials and intends to hold the property chargeable for the demand, must file a just and true account of the amount due him “within six months after the materials shall have been furnished:” Rev. Code 733, section 2.

In the present case, the last item of the account for the materials furnished, was on the 4th of January, 1850. The demand was not filed Until the 29th of August, 1850, being more than six months after the furnishing, of the materials and the accruing of the plaintiff’s demand. This was too late in order to make the demand a lien upon the property.

The judgment of the circuit court was rendered against the defendant, Boecker, as the person indebted to the plaintiffs. The defendant, Gibson, claiming the property under Boecker voluntarily appearing and waiving a scire facias, the case was submitted upon an agreed state of facts between him and the plaintiffs. The question of law arising u¡pon the agreed facts, was, whether the demand Was alien upon the property. The court gave- judgment /or the plaintiffs and awarded execution against one-fifth of the property. The judgment against the property and the award of execution are reversed; the other judges concurring.-