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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 inan 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, baving 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 inechanic'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 transaction, and the lien of the mortgage for the purchase money cannot be displaced or postponed by a mechanic's lien which 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 improvements, would not sell under the judgment thus obtained, but at a subsequent term caused that judgment to be altered, so 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 Statutes 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 returu of an officer made outside of this state must accomplish
equally as detrimental results 180 as within this state, and, when made within this state, it has been ruled in several cases that a judgment based thereon is null: Brown v. Langlois, 70 Mo. 226, and cases cited.
4. It has been urged that the plaintiff cannot attack collaterally the judgment rendered in the mechanic's lien suit. But there is no doubt that a stranger whose interests are about to be prejudiced by the enforcement of the judgment may show that it was rendered without jurisdiction: 2 Freeman on Judgments, 4th ed., sec. 337; 1 Freeman on Judgments, sec. 154. Besides, a judgment cannot bind the rights of a stranger: 1 Freeman on Judgments, sec. 154; 1 Black on Judgments, secs. 218-220.
5. Something has been said about the proceeding to enforce a mechanic's lien being one in rem, but this is incorrect. This is a proceeding inter partes, and so appears by the record itself: 2 Freeman on Judgments, sec. 606, and cases cited; Dunphy v. Riddle, 86 III. 22.
But, even if such were the nature of the proceeding, it would bind no one not made a party to it, and would not be even prima facie evidence against such non-notified person: Hassall v. Wilcox, 130 U. S. 493; Windsor v. McVeigh, 93 U. S. 274.
There are numerous other and fatal errors which might be noted in the proceeding which plaintiff was successful in enjoining, but it is quite unnecessary to do so.
MECHANICS' LIENS-FORECLOSURE-MORTGAGEE AS PARTY.-A mechan. io's lien should be enforced by making all persons interested in the land parties to the suit, as the rights of those not made parties are not affected by the decree: Williams v. Chapman, 17 Ill. 423; 65 Am. Dec. 669, and note. A prior mortgagee is properly made a party to a proceeding to enforce a mechanic's lien under the Illinois statute, although the mortgage debt may not yet be due: North Presbyterian Church v. Jevne, 32 III. 214; 83 Am. Dec. 261, and note. A mortgagee need not be maile a party to proceedings to enforce a mechanic's lien in order to cut off his right to redeem. The judgment is conclusive upon the parties, and those who claim under or through them: State v. Eads, 15 Iowa, 114; 83 Am. Dec. 399, and note.
MORTGAG ES—MechanICS' LIENS-PRIORITY.—The lien of a mortgage for the purchase price of land is paramount to any lien existing in favor of a mechanic for labor in erecting a building thereon: Saunders v. Bennell, 160 Mass. 48; 39 Am. St. Rep. 456, and note; but see Haxtun etc. Heater Co. v. Gordon, 2 N. Dak. 246; 33 Ain. St. Rep. 776, and note, with the cases col. lected; also the uute to Kirkpatrick v. Kunsas City etc. R. R. Co., 41 Am. St. Rep. 758.
JUDGMENTS BY Default ON IMPROPER Service OF PROCESS. — Judgment by default when the proof of service of process is defective is void, and a motion to vacate it cannot be resisted by proving that the summons was in fact properly served: Reinhart v. Lugo, 86 Cal. 393; 21 Am. St. Rep. 52 and note. See, also, the note to Williams v. Wescolt, 14 Am. St. Rep. 296.
NOLAND V. BARRETT.
(122 MISSOURI, 181.) JUDICIAL SALES—ADMINISTRATOR'S SALE WITHOUT APPRAISEMENT—Core
LATERAL Attack.—The sale of real estate by an executor or administrator without having it appraised is an irregularity for which the sale may be set aside in a direct proceeding for that purpose; but it is not on this account absolutely void in a collateral proceeding after confirm. ation by the probate court; nor is it void because appraisement was
made before the entry of the order of sale. JudiciaL SALES.- ADMINISTRATOR'S SALES OF REAL ESTATE, under orders of
the probate court, in those states which require such sales to be re
ported to the court for its approval or rejection, are judicial sales. JUDICIAL SALES.-ADJOURNMENT BY AN ADMINISTRATOR of a sale of real
estate to a t me different from that fixed in the order of the probate court authorizing the sale does not render void the sale as afterward made, reported, and confirmed by such court, especially if the adminis. trator has exercised a wise discretion in adjourning the sale for the pur.
pose of preventing a sacrifice of the property. Judicial Sales—CONFIRMATION—CONCLUSIVENESS. –The judgment of the
probate court confirming an adjourned sale of real estate made by an administrator is final and conclusive until set aside in a direct proceeding, and cannot be collaterally attacked. H. C. McDougal and C. F. Moulton, for the appellants.
G. F. Ballingal and Botsford & Williams, for the respondents.
184 GANTT, P. J. This is an action of ejectment by the widow and heirs at law of William H. Twyman, late of Jackson county, against William T. Barrett, the tenant of Mrs. Catherine E. Donnell, and Mrs. Donnell, and her husband, for two hundred and three acres of land in Jackson county, to wit: East half of the southwest quarter and west half of southwest quarter, except fifty acres off of the north end of the last-mentioned tract, all in section 7, township 49, range 32 west; and all the land east of the Big Blue river in the east half of section 12 in township number 33, containing fifty acres; and the south west quarter of section 7, township 49, range 32, and ten acres off the north side of the southwest quarter of section 7, township 49, range 32, con