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RUSSELL V. GRANT.

(122 MISSOURI, 161.) MECHANICS' LIENS–PARTIES.– A mortgagee of land on which a building is

erected subsequently to the mortgage is not bound or affected by pro. ceedings to enforce a mechanic's lien against the building unless mado

a party. MECHANICS' Liens- MORTGAGE-PRIORITY.-The lien of a mortgage for the

purchase price of land cannot be displaced or postponed by a mechanic's lien for material furnished for a building thereon which attaches sinul. taneously with the acquisition of title by the mortgagor and the execu.

tion of the mortgage. MECHANICS' Lieng-JUDGMENT OF FORECLOSURE— PARTIES. -No valid judg.

ment can be rendered establishing and foreclosing a mechanic's lien,

unless the contractor who erected the building is made a party, JUDGMENTS ON Void PROCESS. – A judgment by default, based on the return

of an officer made outside the state, and shown to be invalid under tho

laws of that state, is null and void. MECHANICS' LIENS-JUDGMENT OF FORECLOSURE-COLLATERAL ATTACK.-A

stranger whose interests are about to be prejudiced by the enforcement of a judgment foreclosing a mechanic's lien may show that it was ren.

dered without jurisdiction. MECHANICS' LIEN-SUIT INTER PARTES. -A proceeding to enforce a me.

chanic's lien is a suit inter partes, and not in rem.

APPLICATION for an injunction to prevent the removal of houses from certain land. On October 6, 1888, J. T. Holines was the owner of the land in dispute. For some days prior thereto negotiations had been pending between him and J. Goodin for a sale of the land to the latter, and negotiations had been pending between the latter and Joel Harford for a sale of the land to the latter, and between the latter and Harkness & Russell for a loan from the latter on the property. On the day mentioned the negotiations were completed, and Harford and wife executed and delivered to Harkness & Russell a deed of trust, dated October 4, 1888, conveying the land to L. A. Laughlin, trustee, to secure a note for seven thousand and fifty dollars, at ninety days. Harkness & Russell, at that time, paid on Harford's account, two thousand two hundred dollars of the loan to Goodin as part of the purchase price, and the latter paid part of it to Holmes, and received from the latter and his wife a warranty deed. On the same day Goodin delivered to Harkness & Russell the Holmes deed and the deed from himself and wife to Harford. On October 8, 1888, Harkness & Russell delivered all three of the deeds to the county recorder, simultaneously, to be recorded. The lumber to build the

houses began to be delivered contemporaneously with the filing of the deeds for record. Harford erected six houses on the land, and the balance of the loan made by Harkness & Russell was paid out by them on orders from Harford for labor and material used in the construction of such houses. On February 19, 1889, the Interstate Lumber Company filed a mechanic's lien against the property for such labor and material, amounting to two thousand four hundred and sixty dollars and seventy-nine cents, and on that day began proceedings to foreclose the lien, making Harford, Goodin, Harkness & Russell defendants.

The petition, among other things, alleged that a note was given by Har. ford and Goodin to the plaintiff for two thousand four hun. dred and fifteen dollars and five cents, at sixty days, for a part of the account sued on. Summons was personally served on Goodin, Harkness & Russell, in Missouri, on February 20, 1889. An alias summons was issued, and served on Harford, in Franklin county, Kansas, on July 24, 1889, by the sheriff of that county. “The return does not show that the aslidavit of service is made before the clerk of the court of which affiant is an officer; nor does the evidence show that the court of which the clerk certifies was a court of record.” On April 8, 1889, Harkness & Russell filed an answer, allego ing their interest in the premises to be as beneficiaries in the deed of trust from Harford, and that such interest was acquired prior to the erection of the houses. Goodin and Harford made default. When the case came on for trial the suit was dismissed as to Harkness & Russell, and plaintiff obtained a personal judgment against Harford for two thousand six hundred and seventeen dollars and five cents, and established the demand as a lien against the real estate and improvements. Execution issued under this judgment December 21, 1859, and the sheriff advertised the lots and improvements to be sold on May 23, 1890. On May 16, 1890, Russell, who had purchased the property on March 9, 1889, petitioned the court for an injunction to prevent the sale. On May 24, 1889, a temporary injunction theretofore granted was dissolved, and the petition dismissed.

On June 20, 1890, the execution was returned unsatisfied. On May 26, 1890, Goodin filed a motion to set aside the judg. ment against him for irregularity, and on May 29, 1890, Harford filed a motion to modify the judgment. On May 31, 1890, the court modified the judgment by setting aside

the personal judgment as to Goodin and establishing the lien against the houses only. At the time the judgment was so modified no notice was given to any one but Harford and Goodin. On June 21, 1890, another execution was issued, and levied on the houses, and after twenty days' notice the sheriff sold them on July 29, 1890, to M. R. Grant, who purchased for the Interstate Lumber Company. The note for seven thousand and fifty dollars, given by Har. ford to Harkness & Russell, and secured by deed of trust, was not paid at maturity; consequently the trustee, Laughlin, advertised and sold the property under the trust deed on February 28, 1889, for two thousand five hundred dollars, to C. T. C. White, who, on March 9, 1889, sold the property to Russell for twenty-five thousand dollars. From this time until the commencement of this suit Russell was in possession of the property. On September 3, 1890, Grant and his workmen came upon the premises, tore out the foundation from one of the houses, with the avowed intention of moving it and the other houses off from the lots. Russell then filed his petition for an injunction to prevent such removal. porary injunction was granted, and on final hearing was made perpetual. Defendant Grant then appealed.

Kagy & Bremermann, for the appellant.

L. A. Laughlin and Lathrop, Morrow & Fox, for the respondent.

172 SHERWOOD, J. 1. Our statute in relation to mechanics' liens provides that: “The lien for the things aforesaid or work shall attach to the buildings, erections, or improvements for which they were furnished or the work was done, in preference to any prior lien or encumbrance or mortgage upon the land upon 173 which said buildings, erections, improvements, or machinery have been erected or put; and any person enforcing such lien may have such building, erection, or improvement sold under execution, and the purchaser may remove the same within a reasonable time thereafter": Rev. Stats. 1889, sec. 6707.

“ The lien for work and materials as aforesaid shall be preferred to all other encumbrances which may be attached to or upon such buildings, bridges, or other improvements, or the ground, or either of them, subsequent to the commencement of such buildings or improvements”: Rev. Stats. 1889, sec. 6711.

“In all suits under this article the parties to the contract shall, and all other parties interested in the matter in controversy, or in the property charged with the lien may, be made parties, but such as are not made parties shall not be bound by any such proceedings ": Rev. Stats. 1889, sec. 6713.

Under the first quoted section the priority of a mortgage on the land would still allow the mechanic lienor a priority over the improvements put upon the land, while, by the terms of section 6711, a mechanic's lien would enjoy preference and priority both as to land and improvements over a subsequent mortgage. But, whether the mechanic's lien have priority of the mortgage, or vice versa, the necessity for the lienor when proceeding to establish and to foreclose his lien (for the process is a twofold one) to make the mortgagee a party would seem to be most obvious. And this is true, notwithstanding the singularly worded provisions of section 6713 of the Revised Statutes of 1889.

That no one can be passed on in person or estate without an opportunity afforded him to be heard is axiomatic. If the section in question had been entirely silent as to make ing parties to the proceedings other than those who are parties to the contract, still the law 174 would intend that such noncontracting parties should be brought in before their rights could be passed upon.

Cases abound in this state and elsewhere announcing this fundamental and wholesome doctrine of the essential nature of notice to the party to be affected, and that that notice will be implied, though the statute be silent on the point: Laughlin v. Fairbanks, 8 Mo. 370; Wickham # Page, 49 Mo. 526; Brown v. Weatherby, 71 Mo. 152; State v. Board of Equalization, 108 Mo. 235; State v. Walbridge, 119 Mo. 383; 41 Am. St. Rep. 663; Sutherland on Statutory Construction, sec. 334, and cases cited. Provision for notice is part and parcel of " due process of law": Cooley on Taxation, 2d ed., 363, 364.

In Hassall v. Wilcox, 130 U. S. 493, a ruling was made quite apropos the point in hand; there the state law made no provision for notice to other lien holders, but provided that such lienholders might intervene and become parties to a buit instituted in the state court, and gave the holder of a mechanic's lien priority over all other liens, and though a suit was brought in the state court and judgment recovered by the mechanic lienholder against the railroad property, yet it was held that as to a plaintiff lienor under a mortgage not made a party to such proceeding, the judgment in the state court could not operate even as prima facie evidence against the mortgage lienor, and might be questioned by him in the federal court in a proceeding in that court to foreclose the mortgage. In that case the former ruling of Windsor v. Mc Veigh, 93 U. 8. 274, is cited with approval, where it is held that even in a proceeding in rem some form of notice is as essential and indispensable as in other cases.

Take the case of a mortgagee who holds a mortgage on certain land; afterward a building is erected thereon, and a lien paper is filed against that building. 175 If that lien paper is in any sense invalid, or suit be not brought thereon in time, then the mortgagor becomes the absolute owner of the building, subject, however, to the rights of the mortgagee who has rights superior to those of the lien debtor, and therefore has a right to be heard when the mechanic's lienor attempts to establish his lien against the building or against both building and land and to foreclose the same; because, peradventure, he may be able to show invalidating facts, to wit, that the lien paper was not filed in time; that it was not properly itemized; or not properly authenticated; or suit not brought within the proper time. All these and other invali. dating facts are open to the mortgagee, whether prior or subsequent, to prove. If he prove any one of them he defeats the establishment of the lien, and also its foreclosure. In order that he may do this an opportunity to be heard is a sine qua non, and must be given him. Unless this opportunity be afforded him, he is not “bound," that is, “affected," thereby, or as said by Wagner, J., in similar circumstances: “As Clark [the beneficiary] was not made a party to the proceedings for the enforcement of the mechanic's lien, he was a stranger to them, and they have no force or effect upon him”: Crandall v. Cooper, 62 Mo. 480.

In this connection it is proper to remark that a mechanic's lien is wholly unlike a contract lien, in that the former is inchoate, and has no existence until established by the judge ment of the court, but the contract lien binds upon being delivered and recorded. The contract lien cannot be gain. said; it dates from its registry, while the mechanic's lien dates from the date of the rendition of the judgment which establishes it and into which it becomes merged. In order to prevent the establishment of this lien, in order to show it cannot legally be established on property in which 176 he is

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