Nold v. Ozenberger

BliOADDUS, P. J.

This is a suit to enforce a mechanic’s lien for materials furnished by plaintiff for the construction of a dwelling on certain property owned by defendants, Jester S. Ozenberger and Mattie O'zenberger, his wife, by the entirety. The material was furnished on and between respectively the 27th day of August, 1907, and July 17, 1908. It is admitted that in so far as the filing of the lien is concerned it was regular. The suit was begun on December 19, 1908.

On April 14, 1908, Ozenberger and wife executed a deed of trust on the real estate described in the lien and petition to Joseph Morton as trustee for the benefit of the Hoagland Loan and Investment Company to secure the payment of two thousand dollars, the condition of which instrument being, that upon the failure of the grantors to pay taxes and other charges upon the property the whole indebtedness should at the election of the beneficiary immediately become due and payable and with power in the trustee to sell the property on giving twenty days’ notice.

On April 14, 1908, Ozenberger and wife executed another deed of trust to Jacob H. Schloss as trustee to secure an indebtedness due the Empire Trust Company as beneficiary therein" named, with provisions, similar to the first described deed, except that it was made subject to the former.

Prior to the 16th day of February, 1909, default *443 occurred in the first described deed to Joseph Morton, because of the failure of the grantors to pay taxes and other charges, for which default the beneficiary, declared the whole amount of the indebtedness due and payable and after advertising for the required length of time, the trustee sold the real estate described and Theodore Hoagland became the purchaser at the sale.

The lien and. petition alleged that the materials were sold under contract with Ozenberger and wife. The cause was tried on October 29, 1909, and the finding and judgment established a lien against all the right, title and interest of the husband, Jester S. Ozenberger, in the real estate and improvements described in the petition and lien, and personal judgment was also rendered against the defendant Jester S.'Ozenberger for $436.61. The finding was that Mattie Ozenberger did not contract with plaintiff or agree to pay for the materials, and the judgment was in her favor as to that matter. The court further adjudged a lien against all the right, title and interest of the defendants, Joseph Morton, Hoagland Loan & Investment Company, Jacob H. Schloss and Empire Trust Company in and to the property described, and also against all the right, title and interest of Mattie Ozenberger in and to the improvement.

The defendants, Joseph Morton, Hoagland Loan & Investment Company, Jacob H. Schloss and Empire Trust Company appealed from the judgment.

Appellants’ contention is that, notwithstanding Mattie Ozenberger did not appeal from the judgment of the court subjecting her interest in the improvement itself to plaintiff’s lien, the judgment should be reversed, because defendants by their deeds acquired a lien upon all the interest she had in the property including her interest in the building and that the judgment to that extent affects their interest in said building. We are of the opinion that the judgment enforcing the lien against the interest of the wife in the improvement was *444 a nullity and did not in any manner affect tlie rights of the appealing defendants. The plaintiff was entitled to his lien against the. building, notwithstanding the wife was not a party to the contract for the improvement. The statute provides that liens for work and materials shall be preferred to all other encumbrances which may be attached to or upon such buildings or other improvements subsequent to the commencement of such buildings or improvements. [R. S. 1909, sec. 8219.] The judgment enforcing a lien against the improvement made at the instance of the husband who was a tenant by entirety was good as against the improvement itself without any judgment intended to affect the interest of the wife in the same. The appealing defendants under the deeds made subsequent to the commencement of the improvements took their estate subject to plaintiff’s right to a'lien against such improvements and the judgment- as to him, enforcing the lien against the same attached to the whole and not merely to a part thereof.

The husband’s right of possession in the estate was such as was subject to the lien and could be sold under execution. This seems to be the recognized law of the state. [Hall v. Stephens, 65 Mo. 670 .]

Appellants insist as the said deed of trust was foreclosed at the sale by the trustee and their interest conveyed to Theodore Hoagland, they no longer had any interest in the property and therefore were not proper parties defendant to the action, and therefore the judgment as to them was unwarranted. In this contention appellants have left out of consideration the fact that the said deed of trust was not foreclosed at the time the action was begun, but while their interest in the property remained. The statute provides that all 'persons having an interest in the property sought to be affected by the lien may be made parties to the action. [R. S. 1909, sec. 8221.] The plaintiff thought fit to make them parties as he had the right to do under the statute and *445 it became their duty after they had parted with their interest in the controversy to have ámended their answer and set up a disclaimer of any such interest. But instead of so doing, they continued to combat plaintiff’s right to enforce his lien until final judgment. We are therefore of the opinion that they are now estopped from saying that there was error committed as to the judgment in so far as they are concerned. And as there is no personal judgment against them, and as the judgment only affects the property in which they say they have no interest, they are in no way affected by it, and cannot be injured.

But the main contention of the appellants is that, because the purchaser, Theodore Hoagland, of the property at the foreclosure sale under the deed of trust was not made a party defendant the judgment is erroneous. This is not a matter of which they can complain as they are insisting that they have no .interest whatever in the result. There contention is not based on any action of the court by which they have been wronged, but because someone who is not a party to the suit has not been heard to assert his rights. We are not aware of any course of practice that would authorize such a plea. To support this theory our attention is called to the case of Russell v. Grant, 122 Mo. 161 . The facts of that case were, that there was a judgment establishing a mechanic’s lien on certain buildings, and a sale thereof .under the judgment. The owner of the property mortgaged the property to secure a certain indebtedness which was in point of time prior to the mechanic’s lien. A sale was had under the mortgage. The grantee of the purchaser at the sale was not made a party to the suit to foreclose the mechanic’s lien. The purchaser at the sale under the mechanic’s lien foreclosure sought to remove the building, whereupon the grantee of the purchaser at the foreclosure under the mortgage sued out an injunction to restrain him from so doing. It is held that as the plaintiff was not made a party to the proceedings to *446 foreclose the mechanic’s lien, he was not precluded thereby and the injunction was sustained. The effect of the holding is that as to the plaintiff therein, the judgment was subject to collateral attack. There is no fault to be found with the holding as we think it is strictly in accord vdth the provision of the statute, that persons having an interest in the property sought to be charged with a mechanic’s lien are not bound by the proceedings, unless they are made parties thereto.

Such being the law it is not necessary for us to attempt to decide the force and effect of the judgment herein rendered, as to the rights of Theodore Hoagland. If he was wronged by the judgment the courts are still open to him for redress.

Complaint is made that the judgment is excessive, but as the attention of the court was not called to the excess, Ave are not authorized to disturb the judgment on that -account. If such be the case without doubt, we presume plaintiff’s counsel will enter the amount of such excess on the record of the trial court.

Finding no error the cause is affirmed.

All concur.