Sibley v. Casey , 6 Mo. 164 ( 1839 )

Opinion of the Court delivered by

Napton Judge.

The plaintiffs in error sired out a scire facias from the clerks office of the St. Louis circuit court, by virtue of the provisions of the 6th section of the act for securing liens to mechanics and others; Rev. Co. of ’35, p. 108, calling upon Margaret Casey as 'the person with whom plaintiff's had contracted for a building, and Ann Biddle- as the owner of the lot on which the building was 'erected, to show cause why judgment should not be entered up, and execution had! against the property on which they had'filed their lien.' Defendants appeared and plead. Ann Biddle plead in substance, that the lot on which said building was erected, before and at the time of of the- erection thereof, was and still is the property of'the- said Ann, and that she did not cause the said building or any part thereof to be- erected- &c and the second plea is virtually the same. Margaret Casey pleadeovertur$,To these pleas, plaintiffs demurred generally. The demurrer was •overruled 'and judgment given for defendant. . . ’

in proceed-' “"tde*on_ cerning ‘buii- - ^a case'in which c*antd eon building has ecreerct*jd space around be'm'ade subject to the juchante, is whore the owner of the land lias oaus-ir?gt5to be^l" rooted.

• The -only 'question made in this court is on the sufficiency of the pleas.. The act under which this suit was instituted, provides that aftizans, builders, mechanics and those who furnish materials for'building under contract with the proprietor thereof shall have a lien upon such materials furnished and to work and labour done, on houses and other edifices by them hereafter erected'in whole or in part, each art-, izan, builder, mechanic and labourer, for his own work and-materials' furnished; the 6ih section of the same .act further provides “that in .all cases under this ac't, it shall be lawfull. for .the plaintiff to proceed by scire facias .¿gainst the original debtor and against all and every person or persons owning or.possessing the property against which he wishes to. proceed-but no judgment to be rendered on the scire fa-cias shall. authorise the issuing of any execution except against the'property charged'With such lein,' or such part thereof as the court shall direct. The last section sn/s that the land upon which any- building shall be erected, together with a convenient- space round the samel, not exceeding five, hundred square feet clear of the building, shall be also subject to' the lien's which are- to be 'had un.der and by virtue of '¿this act, if the said land shall have been at the time of,erecting-the said building, the property - of the..person who- shall, have caused the same to have been .erected.” ' ,

. It seeips- from the last section,- that the only case ifi which ttie'land on which the building ha's been erected, and a certain specified space around the building,can be made subject to the lien of the mechanic, is where tíre proprietor has caused the building to be erected. -Mrs. Biddle’s plea, therefore, seems to ipe a complete answer to the plaintiffs demand-so far- as> her-liability as proprietor' was concerned. .It .alledges, that she Was proprietor of the land when and since'the building was'erected, and that she did not cause the same or any part thereof to be erected; the land was consequently clearly not liable,,if;this plea-was true.. ■

• The plea of., coverture put in by Mrs. Casey is objected to on the ground that this is a. proceeding “in rem” and' that n° ^6a Persona^ disability can effect the merits of the claim. We cannot infer any thing from the letter and spirit of this act of the legislature, in relation to mechanics’ liens, t}iat ^ was inten¿e¿ †0 exempt mechanics from the operation of the established rules of law in relation to contracts. Indeed the first section of the act seems to preclude any suc}i inference. Artizans, builders, mechanics and others . , , who furnish materials lor building, “under contract with Pr°Prieior thereof’ and those who enjoy the privileges of the lien. The word contract, I presume, was used here jts je„aj sense an¿ it js essential to the existence of a ° contract that there shall be parties to it capable of being contracted with. It is no more hardship on mechanics that they should keep an eye to this principle in making their . . . ...... , . ,, , contracts m relation to building houses, than it would be m re^erence any other subject matter. The plea of cover-ture was therefore a good plea in bar, and the court did not err in overruling the demurrer. Judgment affirmed,

Therefore, on a scire fa-das issued a-owner of °tho land to show causewhycx-ecution ' su°UagainsVS' thc land it feneeS°that the land on which the building was erected, was at the time i$-c. the pro-perty of deft, and that deft, did not cause the building to be erected. This act was not intended to exempt mechanics &c. from the operation of the established rules of law in relation to contracts. Therefore, where one of the defts. pleaded coverture, at the time §-c.. such was held