Jones v. Hurst. , 67 Mo. 568 ( 1878 )

This was a suit to enforce a mechanic's lien for materials furnished and work done by Coates Embree, a firm composed of John T. Coates and William E. Embree, under a contract with the defendants, Hurst, Graham Co., owners of the property sought to be charged.

The work was completed on February 15th, 1874. On May 19th, 1874, Coates Embree drew on the defendants, Hurst, Graham Co., in favor of Wm. E. Embree, for one thousand dollars, that being the balance due them on the contract, which draft was accepted by said defendants on June 15th, 1874, payable November 1^st, 1874, This draft was afterwards deposited by Embree with the plaintiff as collateral security; and while it was so deposited, Embree, on the 14th day of August, 1874, filed a mechanic's lien on the property subject thereto under the contract. On September 14th, 1874, one month after the lien was filed, Embree sold and transferred the accepted draft to the plaintiff, who, on the 9th of November, 1874, instituted the present suit to enforce the lien. Judgment was rendered in favor of the plaintiff enforcing the lien for the balance due, and defendants have appealed. It is contended by the defendants that the lien sought to be enforced was originally invalid, that Embree, as assignee of the debt due the firm of Coates Embree, has no right to file such lien, and that even if he had, the plaintiff, Jones, as the holder and owner of the accepted draft, had no right to maintain the present action.

It is unnecessary to determine in the present case whether a simple assignee of a contractor can, either in 1. RIGHT OF A PARTNER TO ENFORCE A MECHANIC'S LIEN:assignment: recitalin the lien paper.

the name of the contractor or in his own name, file a mechanic's lien. The facts of this case do not call for an opinion on this point. In addition to being the assignee of his co-partner's interest, Embree was a joint owner of the debt, and an original party to the contract, and as such partner and contractor he had an undoubted right to use the firm name to perfect the lien. The statement constituting the lien recites a contract with, and an indebtedness to, the firm, and, though sworn to by Embree alone, is in all respects sufficient as a lien filed by the firm. The statute provides that the account filed may be verified by the contractor himself, or by some credible person for him. 2 Wag. Stat., p. 909, § 5. The recital therein that the debt had been assigned to Embree, and that he alone was entitled to the benefit of the lien, is mere surplusage, and does not alter its effect or impair its value. Nor will the fact that the lien was filed in the name of the firm after the assignment to Embree of his co-partner's interest affect the validity of the lien. Busfield v. Wheeler, 14 Allen 139.

2. A MECHANIC'S LIEN PASSES TO A PURCHASER OP THE DEBT:

It is shown by the testimony that the purpose in drawing upon the defendants for the entire balance due on the contract was to transfer that indebtedness to Embree. After the lien was filed, therefore, Embree, as assignee of the debt secured by the lien, although he was at the same time the owner of an accepted draft covering the same debt, had an unquestionable right to enforce the lien in his own name, inasmuch as the draft was payable within the time in which suit was required to be brought to enforce the lien. Goff v. Papin, 34 Mo. 177; McMurray v.Taylor, 30 Mo. 263; Ashdown v. Woods, 31 Mo. 465. And it must be admitted, since the decision of this court in Goff v. Papin, supra, that if the account against the defendants — that is, the defendants' indebtedness to Embree — had been transferred by Embree to the plaintiff, the plaintiff could have enforced the lien in his own name. The record, however, discloses no assignment of the account to the plaintiff, but a transfer only of the draft. This circumstance does not, in our opinion, at all affect the plaintiff's right to maintain this suit.

The lien does not secure the account as such; it secures the debt, of which the account is but a statement. The draft here is the evidence of the debt which the lien secures, and the owner of the draft is the owner of the debt. No assignment of the account as such was necessary in order to transfer the debt to the plaintiff. The fact that the plaintiff may have to surrender the defendants' acceptance when he sues to enforce the lien can make no difference. We do not mean to assert the general proposition that the indorsee of a note given in settlement of an account may surrender the note and sue on the account, as the payee might have done. There may be a want of privity in such case. But where there is a lien, it adheres to the debt, no matter how such debt may be evidenced. A mortgage originally made to secure a debt evidenced only by an account will follow that debt into a note, into a renewal note, and even into a note given by the debtor to a third person. Washburn on Real Property, Vol. 2, p. 173.

We are of opinion, therefore, that the plaintiff had a right to maintain this suit, and the judgment will be affirmed. The other judges concur.

AFFIRMED.