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“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, notwith. standing 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 k 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 buit 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. McVeigh, 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 mortgages 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 invalidating 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 judgment of the court, but the contract lien binds upon being delivered and recorded. The contract lien cannot be gainsaid; 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

interested, and of which he is the conditional, and may become the absolute, owner, the mortgage lienor has a right to be heard. In the language of Judge Richardson, in Clark v. Brown, 25 Mo. 560, in a similar case, “the law repudiates the idea of condemning the property of one man to pay the debt of another, without giving him an opportunity in court, upon due service of process, of showing that the claim ought not to be asserted against his property."

The latter portion of the opinion in Crandall v. Cooper, 62 Mo. 480, has given rise to some misapprehension, to wit: “The purchaser might have bought the erections and improvements freed from all liens, and would have been entitled to recover them, and this is all that he could have acquired." This remark, in the first place, was obiter, because the purchaser had not bought the improvements. The case had already been disposed of on a contract basis, and what Judge Wagner evidently meant, having previously referred to the statute requiring notice, was this: “If Clark had been a party to the lien suit, he would have been bound thereby, and the purchaser might have bought the improvements,” etc. Construing the case in this way, it gives effect to section 6713, in its entirety, and prevents any intended or attempted wrong, and affords no opportunity for the perpetration of any injustice.

And in this connection it is well enough to say that the fact that the prior mortgage lienor had previously bought in the property under the deed of trust does not diminish his right to be heard when the suit to establish and foreclose the mechanic's lien comes on, because, even then, he has a right to be heard in order that he may protect his property from the assertion and establishment of an unjust or nonexiste ent lien.

The doctrine in Crandall v. Cooper, 62 Mo. 480, affirmed in Coe v. Ritter, 86 Mo. 277, has recently been reaffirmed by 177 division number 1 of this court in Hicks v. Scofield, 121 Mo. 381.

2. In the foregoing remarks the lien of Harkness & Russell has been treated as the prior one, and so it should be treated, and for these reasons:

(a) Under the provisions of section 6706 of the Revised Statutes of 1889 the mechanic's lien attaches "to the extent and only to the extent of all the right, title, and interest owned therein by the owner,” etc. In the case at bar, as

already seen, the deed to Harford was never delivered to him, but all the deeds from Holmes to Goodin, from the latter to Harford, and the deed of trust from the last named to Harkness & Russell, were all handed Harkness & Russell on the 6th of October, 1888, who, on the 8th of October next thereafter, handed them all to the recorder for recording. Harford never acquired any title before that time. It does not clearly appear when the first load of lumber was delivered on the premises by the Interstate Lumber Company; the best that can be said about it is, that it was delivered about 9 A. M. on the same morning the deeds were put to record. If this delivery of the first lot of lumber was before Harford acquired any title to the property, though work on the premises had actually begun, the lien of the mechanic would postdate a mortgage given for the purchase money; and of course the same result would follow if the mortgage were really prior in point of time: Steininger v. Rueman, 28 Mo. App. 594.

And it seems that a mechanic's lien, under the terms of section 6706, only attaches to the property in the condition in which it comes into the mortgagor's hands. If he purchase property and give a mortgage for the purchase money the deed which he receives and the mortgage which he gives constitute but one 178 transaction, and the lien of the mortgage for the purchase money cannot be displaced or postponed by a mechanic's lien wbich attached simultaneously with the acquisition of title by the mortgagor: 1 Jones on Mortgages, sec. 158; United States v. New Orleans R. R. Co., 12 Wall. 362; Steininger v. Raeman, 28 Mo. App. 594.

(6) But further on this point: “If a husband takes a conveyance in fee, and at the same time mortgages the land back to the grantor or to a third person to secure the purchase money, either in whole or in part, such a transitory seisin by the husband, the instantaneous passage of the fee in and out of him, is not deemed enough to render him sufficiently and beneficially seised to entitle his wife to dower as against the mortgagee, though on foreclosure of the mortgage she will be entitled to such portion of the surplus proceeds of the sale after satisfying the mortgage as equals her claim to the extent of her dower: 4 Kent's Commentaries, 13th ed., *39. Now, if dower, the favored and favorite estate, both at law and in equity, cannot attach, in the circumstances stated, to the temporary seisin of the husband, certainly a like result should follow where a lien in invitum, one strictly statutory in its

nature and limited by the terms of the statute to the precise extent of the owner's title, is attempted to be established.

(c) In this case, as heretofore stated, the Interstate Lumber Company, after recovering a judgment establishing and foreclosing its lien against both the lots and the improve ments, would not sell under the judgment thus obtained, but at a subsequent term caused that judgment to be altered, 80 as to establish the lien against the improvements only. This modification, however unwarranted it was, and contrary to all known rules of practice and procedure, must be treated as a tacit but substantial confession of record of the fact that 179 the plaintiff company in that case was only entitled to a lien against the houses, and thereby confesses the priority of the nortgage lien under which plaintiff bought.

3. No valid judgment can be rendered establishing and foreclosing a mechanic's lien, unless the contractor is brought, or voluntarily appears, before the court as a party to the suit. This was not done in this case, because of lack of proper service on Harford, both the contractor and owner of the property: Rev. Stats. 1889, sec. 6713.

In Wibbing v. Powers, 25 Mo. 599, Judge Scott said: “The contractor is the only person who can contest the validity of the demand; and, as the proceeding was dismissed as to him, there was no person to defend the claim of the plaintiff. This case is as if a creditor, proceeding by attachment and garnishment, should dismiss his suit against the defendant -the debtor--and afterward take steps against the garnishee, when there could be no judgment which he could be condemned to satisfy": See, also, Ashburn v. Ayres, 28 Mo. 77; Steinmann v. Strimple, 29 Mo. App. 478; Wescott v. Bridwell, 40 Mo. 146.

Here the service on Harford was made in Kansas, professedly under the provisions of section 2029 of the Revised Stat. utes of 1889. But the return of the sheriff of that state is not sufficient under the provisions of the section of the statute just mentioned. That section requires that the affidavit of ser. vice should be made“ before the clerk or judge of the court of which affiant is an officer." This clause is not to be found in the affidavit, and of course it is a nullity, and the return of service worthless; and, since the judgment against Harford was by default, the circuit court was without jurisdiction to render any judgment in the case. The invalidity of the return of an officer made outside of this state must accomplish

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