Ambrose Manufacturing Co. v. Gapen

Ellison, J. Defendants Wilmott and Perkins are the appellants here, and they insist that plaintiff is not an original contractor, as contemplated by the statute, and that he had only four months in which to file Ms [401] |lien for the material which he furnished. As the material was furnished more than four months, though within six, next before filing the lien, it is claimed plaintiff has lost his right, by the lapse of the four months. The statute, section. 3172, gives the lien to mechanics or other persons, who may perform labor or furnish material, on a contract with the owner, trustee, contractor, or sub-contractor. If the contract to labor, or to furnish material, is with the owner, it is an original contract; and the contractor of the labor, -or material, is an original contractor, and under section 3176 has six months in which to file his lien. I think this is the common sense of the statute, and the object intended is borne out by this interpretation. I do not include in this statement journeymen and day laborers, as it is not necessary to a decision of this case. It is contended by appellants that the term original contractor, as used in the statute, has reference solely to those who may do service, by way of work, labor, or superintendence, upbn the building. The point is not well taken. It has been specially ruled by our supreme court, th,at a material man may be an original contractor, and that he is, in fact, such, contractor, if he furnish the material on a contract with the owner. Hearne v. Ry. Co., 53 Mo. 324. It is next contended by defendants that as Gapen had given a deed of trust on the property before his contract with plaintiff he was not the owner. This objection is met by the provisions of the statute itself. Sects. 3174 and 3192. It has been frequently held in this state that the mortgagor or grantor in a deed of trust was regarded as the owner of the estate until entry for condition broken. Kennett v. Plummer, 28 Mo. 142; Woods v. Hildebrand, 46 Mo. 284. Notwithstanding the deed of trust from Gapen to defendants Wllmott and Perkins ante-dates the fur [402] nishing of the material here sued for, still plaintiff has a right to enforce his lien against the building into which his material was placed, and that is all his judgment includes. Rev. Stat., sect. 3174; Crandall v. Cooper, 62 Mo. 478, 480. The next objection is, that as the building against which the judgment was rendered is built of brick, and cannot be removed, the lien cannot be enforced against it, it beingcontended, with much force and earnestness, that the statute could not have intended a remedy which would result in the destruction of the property charged. There are Iowa authorities sustaining this view; our opinion is not in accord with those authorities. Before a building can be removed, it must first have been purchased at an execution sale under a judgment enforcing the lien. The purchaser at such sale becomes the owner thereof with the power of removal within a reasonable time. If there results a destruction of prop erty, ic is the loss of the purchaser and does not harm any other person. If one purchasing property at execution sale, or otherwise, discovers it is so situated that he cannot use it, it is with him whether he will remove the building bodily to some other location, or whether he will take it down and use the material. This we regard as the proper construction of our statute; any other rule would be of very uncertain character in its results. A brick building might be so situated or constructed that the material of which it is composed would be more valuable than the building itself. It may be, a building or improvement could be so connected with other property that its removal would work great injury or destruction to that property. What remedy would be available in such a case, is not necessary here to consider. It is enough that our statute gives the lien on “ any building,” without exception as to kind ; and that the construction herein given to it is, n our view, more consistent with reason, and less hurt [403] ful in its results than would be the rule contended for by defendants. The judgment is affirmed. All concur.