Fairbanks, Marsh & Co. v. Crescent Elevator Co. , 52 Mo. App. 627 ( 1893 )

G-ill, J.

The Keystone Iron Works Company contracted with the defendant to put in the Crescent elevator certain machinery and improvements; and the Keystone Company sublet a portion of the work to the plaintiff, who, failing to get their pay, brought this action for the enforcement of a mechanics’ lien against the elevator building and the land on which the same was situated. On the trial before the court, the enforcement of the lien was denied on the alleged ground that the elevator property was not sufficiently described in the lien papers. From a judgment in favor of the Crescent Elevator Company, and discharging its property from the lien, the plaintiff appealed.

The lien was sought for work and labor done and materials furnished by the plaintiff, “upon, to and for the buildings and improvements described as follows, to-wit: The elevator building situated on the following described premises, to-wit: On forty-three-hundredths of an acre of ground, seven hundred and thirty-five feet north of the center of section twenty-seven (27), township fifty (50), range thirty-three (33), being portion of the ten-acre (10) tract purchased of Albert Ross, all-in Kansas City, Jackson county, Missouri, being the same land on which the Crescent elevator is situated. Said premises, buildings and improvements, belonging to and being owned by the Crescent Elevator Company, * * * the said account being hereby filed in order to constitute a lien upon the buildings, improvements and premises above .described,” etc. The evidence-showed that in East Kansas City, defendant purchased from Albert Ross, out- of a ten-acre tract belonging to him, a piece of real estate measuring forty-three-hundredths of an acre, and erected thereon the building known as the Crescent elevator, with its name upon its side; that this was the only elevator in that vicinity; and that the said lot or piece of land was just-seven hundred and fifty-five feet north of the center of said section 27, township 50, range 33.

The statute requires “a true description of the property, or so near as to identify the same.” Revised Statutes, 1889, sec. 6709. While now we do not have here an absolutely perfect description of this elevator property, is it not so near a correct description as to identify the -same with reasonable certainty? We think so. As said in DeWitt v. Smith, 63 Mo. 265: “If there appear enough in the description to enable a party, familiar with the locality, to identify the premises with reasonable certainty, to the exclusion of others, it will be sufficient.” “There is great reluctance,” says Wág-nek, J., “to set aside a mechanics’ claim merely for loose description, as the acts generally contemplated that the claimants should prepare their own papers, and it is not necessary that the description should be either full or precise. It is enough that the description points out and indicates the premises so that, by applying it to the land, it can be found and identified.” To same effect see, also, Phillips on Mechanics’ Liens [2 Ed.] secs. 379, 381, 382, 383; 2 Jones on Liens, see. 1421.

While the description contained in the lien papers, now under review, is somewhat clumsily expressed, there are yet certain discriminating marks set out that would indubitably lead one familiar with the locality to understand what particular piece of real estate was intended by the lienor. - The charge is for a mechanics’ lien against a lot or tract of land of forty-three-hundredths acres purchased by the Crescent Elevator Company of Albert Ross, and in section 27, township 50, range 33, in Kansas City, Jackson county, Missouri; it is designated as the same lot on which is situated a well-known elevator, the “Crescent,” but the said forty-three-hxmdredths acres is said to lie seven Inmdred and thirty-five feet north of the center of said section 27, when the proof shows the exact distance is seven htmdred and fifty-five feet north of the center of said section. However, when the whole description is considered together, there is no difficulty in locating the property, and correctly, too. The other matters of description so clearly identify the property that it will not be vitiated by this slight error of seven hundred and thirty-five instead of seven hundred' and fifty-five feet. “Where there are certain premises once sufficiently ascertained, whict designate the thing intended to be granted, the addition of a circumstance, false or mistaken, will not vitiate the grant.” Brown v. Gas Co., 16 Wis. 556; Brown v. Wright, 25 Mo. App. 58; Phillips on Mechanics’ Liens, sec. 283.

Judgment reversed and cause remanded.

All concur.