Van Frank v. St. Louis, C. G. & Ft. Smith Railway Co.

BOND, J. While the abstract filed in this court does not set out the evidence adduced on the trial in toiidem verbis, it discloses that the consideration of the accepted bills of exchange was articles furnished to construct or improve the buildings used in operating the St. Louis, C. G. & Ft. Smith Rail 576 way, .for which a mechanic’s lien might have been enforced,, which would have displaced all mortgages placed on the property after the lien law was adopted in this State, provided the lienor had complied with the requirements prescribed for the establishment of such liens. R. S. 1899, sec. 4239, et seq. The record affirmatively shows that no steps were taken to enforce the lien given by these statutes. Although the existence of a statutory lien does not of itself abrogate prior equitable liens which existed when the statute was enacted; it does furnish the measure and method of the enforcement of liens in all other cases. The right of supply claimants to an equitable lien, in certain contingencies, upon the mortgaged property of a railroad in the course of administration by the courts, first received the assent of the Federal judiciary in October, 1878. Fosdick v. Schall, 99 U. S. 235. It was never approved by the appellate courts of this State until, and to the extent, shown in the opinions of this court at this term. It is clear, therefore, that the doctrine in question had received no recognition anywhere when the policy of this State, to create a mechanic’s lien for a claim like the one under review, was manifested by the statutes above quoted, which were first enacted in the Session Acts of 1873, p. 58, or five years anterior to the first ruling on this subject by the United States courts. Under this state of the law and upon the facts shown in this record, we can not escape the conclusion that intervenor’s rights should have been set up in conformity with the statutes of this State applicable to the enforcement of mechanic’s liens for like demands against railroads. This was not done. It follows that the learned trial judge erred in decreeing a lien upon a different theory in favor of the intervener against the proceeds of the sale of the mortgaged property. The judgment herein is reversed. All concur.