Page v. Bettes

Opinion by Philips, P. J. 1. Our statute concerning mechanic’s liens is quite broad and explicit. By section 3172, Revised Statutes, the lien is given to “ every mechanic or other person, who shall do or perform any work or labor upon, or furnish any materials — 374 — —for any building, erection or improvements upon said lands, or for repairing the same under or by virtue of any contract with the owner or proprietor thereof, or his agents, etc., etc.” From which it appears that the lien is given for repairs as well as for erecting a building, etc. — Reilly v. Hudson el al., 62 Mo. 387; Allen & Co. v. Frument M. & S. Co., 73 Mo. 692. By section 3174 the lien is made to attach to the buildings, erections or improvements for which they were furnished or the work done, in preference to any prior lien, or incumbrance, or mortgage, upon the land upon which said buildings, erections, improvements, etc., have been erected or put. And section 3178 expressly prefers such lien “to all other incumbrances which may be attached to or upon such building, etc., or other improvements, or the ground, or either of them, subsequent to the commencement of such buildings or improvements.” When the work in controversy was begun, in September, 1880, there does not appear to have been any incumbrance on the property in question. The incumbrances under which the defendants, Orr and Cockrell, claim title, did not attach until March, 1881, the date of the judgments under which they bought at sheriff’s sale. As to the items of the account then accrued, the judgment lienors were merely subsequent incumbrancers ; as such their liens would be postponed to that of the mechanic and material man. But it is insisted at this point, by Orr and Cockrell, that the plaintiff has lost the benefit of his priority because he failed to file the account for his lien within six month after the indebtedness accrued. It'would seem that such was the view entertained by the trial court, for the judgment recites that the plaintiff was not entitled to his lien against Orr and Cockrell, “for the reason that the last item for material and labor in his account, proved by the evidence prior to the sale to defendants Orr and Cockrell, was not furnished within six months prior to the date of the filing of account for lien by plaintiff.” Plaintiff-’s answer, however, to this is, that his contract with Bettes, the benefi — 375 — cial owner.of the property, made in August, 1880, before the work begun, was an entire, continuing contract, covering all the items embraced in the account; and, therefore, he had six months from date of the last item within which to file his entire account. The last item of the account was in February, 1882, and the account was duly filed on the 28th day of March, 1882. ■ ' In the case of a running account, under a continuous contract, the law is well settled that the mechanic, etc., has six months from the date of the last item within which to file his account and perfect his lien. — Stine v. Austin, 9 Mo. 258-9; Carson et al. v. Steamboat, 16 Mo. 256; Squires v. Fithian, Adm'r, 27 Mo. 134. . If, as a matter of fact, the several items of the account were, for work, etc., under separate contracts between Page and Bettes, Page should have filed his account within six months from the date of the item under each independent contract. — Livermore v. Wright, 33 Mo. 31. So the practical question, in this connection, first to be determined, is, were all the items of work, etc., contained in this account done under one entire contract ? This is necessarily a mixed question of law and fact. The jury are to find what the contract in fact was; and whether the contract thus found is entire and continuing, is a question of law for the court. — Phillips, Mech. Liens, sect. 325. So, whether the work as done was performed under an entire contract, or under distinct contracts, is necessarily a question for the jury, and the court cannot withdraw this inquiry from the jury. — Lb., sect. 326. It often becomes a question of much nicety and difficulty to determine whether all the items of an account occurred under one entire contract, or should be taken as founded on separate express or implied undertakings. “Where work, distinct in its nature, is performed at different times, the law supposes it to have been performed under distinct engagements, as where the work at one time is for building and at another time for repairing. So where two distinct contracts -are in fact made, as for different parts of the work, the work done under each — 376 — contract must be considered as entire of itself. But where work or material is done or furnished, all going to the same general purpose, as the building of a house or any of its parts, though such work be done or ordered at different times, yet if the several parts form an entire whole, or are so connected together as to show that the parties had it in contemplation that the whole should form but one, and not distinct matters of settlement, the whole account must be considered as a unit, or as being but a single contract.”- — Phil, on Mech. Liens, sect. 229. In Hazard Powder Co. v. Loomis (2 Disnay (Cin.) 544), under a statute like ours in the particular under consideration, where the builder began to furnish material towards the erection or repair of the building, without any specific agreement as to ■ the amount of material or time of completion, but under a reasonable expectation that further material and work would be required of him to complete his undertaking, and he was afterwards called upon from time to time to complete the same, it was held that he was entitled to his lien as under an entire contract, and that no part of his claim would be postponed in favor of a subsequent mortgage or incumbrance. It may be further conceded, on most respectable authority, that where long intervals intervene between dates in an account like this for repairs, where there is not any immediate dependence of the parts, the presumption would be that they were based on independent contracts. But this is a mere presumption, which would of course give way when the truth appeared to the contrary. It is, after all, a matter of contract. In Truesch et al. v. Shyrock et al. (51 Md. 162), the defendant made request of the trial court to exclude from ‘ the consideration of the jury certain items in the account because they were deemed as occurring at unreasonably long intervals. The court said: “The question in regard to the nature of the contract, whether it was a continuous one, or whether the materials were furnished under sepa — 377 — rate contracts, were questions for the jury. If the materials were delivered under a continuous contract, the court had no right to exclude certain items on the ground that they were delivered at long intervals. Such deliveries were matters for the consideration of the jury, in determining whether the materials were furnished under a continuous contract or under separate contracts with the builder.” In Holden v. Winslow (18 Pa. St. 160), there was a cessation of over one year after part of the work was done before resumption. It was held error for the court to take the case from the jury. “It should have been submitted to the jury whether the work last done was done under the original agreement, without unreasonable delay, and with the consent of the, owner, or under a distinct contract.” The case of Jones v. Swan & Co. (21 Iowa 181) is quite like the one at bar in the particular under consideration. The work was done and materials furnished in repairing old and making new machinery, from time to time, pursuant to a verbal contract, as they might be ordered. “At this time all the items of the bill were not contemplated, but as additions and changes would be made, other orders would be given, plaintiff acting under the same contract, and defendant doing nothing to lead to any other supposition.” The court says: “To entitle ■the mechanic or builder to a lien, it is not necessary that every item furnished should be contemplated and specifically named at the time of making the contract. They must, be furnished under a contract with the owner or proprietor; but if thus furnished, it makes no difference that the items were charged, from time to time, in the builder’s or mechanic’s books, in the same manner that he charges his other customers generally. Nor is it necessary that it should be expressly understood that the artisan is to have a lien for his work and materials. * * * Such lien attaches and shall be preferred to all other liens or incumbrances, which become such subsequent to the commencement of the building, erection or improvement. ’ ’ — 378 — The items in the account in the above case extended over a period of two and a half years. — See also Lamb v. Hannerman, 40 Iowa 41. In Allen & Co. v. The Frument H. & S. Co. (73 Mo.) the account extended over a longer period than the one at bar, and was for repairs among other things. And the lien prevailed against a subsequent incumbrancer, not, as suggested ‘ by respondent, because the subsequent incumbrancer had notice, for no such evidence appears in the case. It is true, one of the counsel in his brief in that case suggests, arguendo, that the stockholders had notice. But if that were true, that would not be notice to the corporation. The legal entity of the corporation is quite distinct from the individual members composing its stockholders. If the evidence on behalf of the plaintiff, introduced at the trial of the cause, is to be credited, it presents quite clearly the-, case of an entire contract. Bettes testified, inter alia,. that the contract was, that the plaintiff was to repair the-building — generally to overhaul it — to do the labor and furnish the material. No time was specified for its completion. “Our contract was that he was to make all necessary repairs.” The plaintiff testified that his contract was to overhaul, the building generally, and to do-other things to it as he (Bettes) should need from time to-time, specifying a large number of articles embraced in the account. “Before I made the contract with Bettes,, he asked me to go and see if a new foundation could be put in. I said yes, and he said, go ahead and do whatever is necessary to make it comfortable to live in. I told him I could not do it all at once, and he did pot require-it. I did the work of raising the foundation at first, and then the other work as I could.” He further stated on cross-examination: “The new foundation was spoken of, the porch, the windows, the flues, the window blinds. I told him then it would not suit me to take-the contract to do all the repairs necessary if he should require it done at once. He said he would not require-that. He wanted the foundation put in and the house-fixed so he could move into it; then I could take my time379 in regard to finishing it np and do it as I might find leisure.” We think the evidence showed an entire contract, and one sufficiently explicit to entitle the plaintiff to his lien for work and material as claimed, so far as Bettes is concerned at least. 2. Respondents insist, however, that the rendition of the judgments against Bettes in March, 1881, under which they subsequently bought, should be held to have so interrupted the contract for repairs as not to entitle plaintiff to any lien not filed within six months thereafter. This is not tenable. The judgments merely gave the judgment creditors liens on the land and its appurtenances for the debts. As such they were subsequent incumbrancers after the commencement of the work, as declared finder said section 3178, Revised Statutes. 3. It is next insisted by respondents, that at least from the day of the sale under execution, at which they bought, the continuity of the contract between Bettes and Page was broken, so that unless Page had filed his lien within six months from the date of the last item anterior thereto, he had no lien at all; and that as to the items occurring subsequent to the date, of the sale, he could have no lien as against them with or without such filing of the account. It is important in this connection to settle what - is the date of the execution sale and deed thereunder. The first deed in evidence from the sheriff recites a sale made on the 28th day of October, 1881. This deed was executed by the sheriff October 31, and acknowledged November 1st, 1881, andrecorded November 9th .following. It recites that the judgments were against “H. O. Bettes & Sons,” without more. We think the objection made by appellant to this deed was well taken, and it should have been excluded by the court. It was not good on its face to convey the interest off Ira J. Bettes, who, as the evidence showed, was the equitable owner of the property. Nor did the evidence show that the legal title was in H. C. Bettes & Sons. The appellants themselves seem to have mistrusted the efficacy — 380 — ■oí this deed, for the other deed in evidence shows that they took from this same sheriff a subsequent deed for this property under the same .judgments, recited in the second deed to have been rendered against “ H. C. Bettes, William H. Bettes and. Ira C. Bettes.” Both of these recitals cannot be true. This last deed was acknowledged on the 18th day of February, 1882, and recorded March 8th, 1882. Until acknowledged it was not the deed of the sheriff for any purpose. When, then, did Orr and Cockrell, become the purchasers of this property as against Page the lienor ? Sheriff’s sales are within the statute of frauds, and until a deed is made the fee is in the debtor. — Alexander v. Merrill, 9 Mo. 514. “A title to land purchased at sheriff’s sale can only pass by the purchaser obtaining a deed.” — Leach v. Koening, 55 Mo. 543. The doctrine of relation makes the sheriff’s deed operative and effective from the date of the sale. But this doctrine is a fiction of law, and is only recognized by the courts for the purpose of justice. It is never permitted to operate except between parties, privies and purchasers with notice. It never operates against a stranger without notice. — Leach v. Koening, supra; and Alexander v. Merrill, supra. Page was a stranger to the judgments and- all the subsequent proceedings thereunder. Mere constructive notice does not apply to a case ■ like this. ‘ ‘ Until the money is paid and the deed is made the bidder gets nothing.”— Leach v. Koening, supra. How could the plaintiff know that the defendant would ever pay the purchase money or obtain a deed ? Until the deed was made the fee remained in the debtor, and, therefore, the judgments, and whatever was done under them, but constituted incumbrances on the property, and being subsequent in time to the commencement of the work by plaintiff on the premises, was, as we have already shown, by express provision of the statute, subordinate to plaintiff’s lien. 4. Respondents, with much force of argument, contend that the statute in question should not receive such construction as would enable the artisan to thus prosecute — 381 — his work at broken intervals, under an anterior contract, acciimrilating burdens on the property against the subsequent incumbrancer who could have no record notice of the existence of the mere verbal contract for the repairs, and when there was nothing at the time of the execution sale to indicate that the repairs were incomplete. We might sufficiently answer this by employing the language of Woodard, J., in Hahn’s Appeal (39 Pa. St. 413, 414): “It may be said Hahn’s lien is established by parol. It must be admitted. But such is the statute. The lien which it creates originates with the beginning of the building, and that is always proved by parol, and never appears of record. All unrecorded liens are necessarily secret, and it is to be regretted that we are compelled to-tolerate them, but the benevolent purposes of the mechanic’s lien law, it is supposed, are sufficient to justify the departure from the general policy of the laws.” And still more pertinent are the observations of Leonard, J., in Dubois' Adm'r v. Wilson's trustee (21 Mo. 213). Judge Vories, in Douglas et al. v. St. Louis Zinc Co. et al. (56 Mo. 388), after construing the statute in question so as to make the mechanic’s lien to relate back from the date of filing the account to the time of the commencement of the work, says: “It requires no further contract, consent or agreement on the part of the owner of the buildings or land, or of his assignees, after the commencement of the buildings, to confer a right on the claimant to perfect and enforce his lien against the property. The right is vested in the claimant to file his-account and enforce his lien without the consent or concurrence of any one, and, although these things are required by the statute in order to the enforcement of-his lien, yet they do not originate the right to the lienr the right growing out of the contract to furnish the material and its use in the building or erection. Therefore when the account is filed, the lien relates back to the commencement of the building, and cannot be cut off or divested by any transfer or assignment of the owner after the building is commenced.” — 382 — We do not feel called upon, on the' facts before, us to consider the effect of the sale of the property under execution on a subsisting contract for repairs made after the mechanic has notice of the sale and deed. We think the circuit court erred in refusing the fifth and seventh instructions asked by the plaintiff. The sixth instruction, as applied to the state of the proofs, the trial being before the court without a jury, might have been given without injustice. But if the cause should be retried before'a jury, it should be reformed. The jury should be advised that, under the judgments in question, Orr and Cockrell did not become purchasers •until they paid the purchase money and the sheriff’s deed was executed and delivered; arid that such sale and deed would not defeat the mechanic’s lien for repairs commenced under a contract anterior to the judgments and prosecuted up to the time of notice of such sale and deed. It follows that the judgment of the circuit court must be reversed, and the cause remanded for further proceeding in conformity with this opinion. All concur.