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348 Mo. 1144

158 S.W.2d 124

Rosenzweig v. Ferguson

Supreme Court of Missouri

Decided October 25, 1941

Supreme Court of Missouri · decided 1941-10-25

Key passage — most relied on by later courts

“The very object of the mechanics’ lien decree, entered by the trial court, was to enforce the hen created by the mechanics’ lien statute, and the decree did not create a new lien. The statement in the principal opinion [as to which rehearing was therefore denied] to the effect that the decree created a lien is inaccurate. A decree in a mechanics’ lien suit perfects and perpetuates the lien created by statute. The decree itself does not bring the lien into existence.”

quoted by 1 later decision, including Collector of Revenue ex rel. Director of Collections v. Parcels of Land Encumbered with Delinquent Land Tax Liens

Relies on Boyd v. Ellis · Watson v. Keystone Iron-works Co. · Fleckenstein v. Baxter

Good law ✅— No negative treatment on recordhow we know

Decided 1941-10-25

How this case has been cited

Cited by 11 later decisions — most recently September 2015

11 state decisions

4019411950196019701980199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1

[127] ON MOTION FOR REHEARING.
[5] Appellants filed a motion for rehearing arguing vehemently that our opinion, holding that Section 1270, R.S. Mo. 1939, which provides that judgments shall be a lien upon lands for three years, did not apply to a decree establishing a mechanics' lien, was erroneous. Appellants, among other cases, cited Eyssell v. City of St. Louis, 168 Mo. 607, 68 S.W. 893. That was a case wherein the City of St. Louis obtained a judgment for special benefits charged against a lot in a condemnation proceeding. Appellants also rely much upon Hill v. Arnold, 177 S.W. 343, as holding that all judgment liens expire in three years, including decrees establishing special liens against land. The decree of the trial court in the Hill case was treated by this court as a money judgment in personam. Note what the court said at page 345 of 177 S.W.:

¶2"We say the decree undertakes to give a money judgment because the judgment is not expressed in the clear and apt language customarily used in rendering judgment upon debt. And some question *1152 might arise as to whether the judgment in this regard was even sufficient upon which to base an execution."

¶3The judgment of the trial court canceled a mortgage and the parties claimed that the lien created by the mortgage was merged in the judgment. This court decided that since the mortgage was canceled the only lien existing was the judgment lien. We do not think that those cases control the question now before us. The statute governing mechanics' liens gives to mechanics and others a lien upon the property improved by virtue of the contract with the owner of the land upon which the improvements were made. [Sec. 3546, R.S. Mo. 1939.] Those liens may be perfected and perpetuated by taking the necessary legal steps prescribed by the subsequent sections of the statute, particularly Sections 3551 and 3562, R.S. Mo. 1939. It is clear that the general statute, Sec. 1270, R.S. Mo. 1939, does not apply, because mechanics' liens are governed by a special law applicable to those liens. A decree of a court of equity entered pursuant to Section 3570, R.S. Mo. 1939, merely establishes liens created by the statute in favor of those whose labor and material have added an improvement to the lot or land charged with the liens. Certainly the life of those liens does not depend upon Section 1270, supra. Nor does that section in any way limit the provisions of the mechanics' lien law.

¶4In speaking of a special lien against land, by a decree in equity in a suit involving a vendor's lien the Kansas City Court of Appeals in Hockaday v. Lawther, 17 Mo. App. 636, l.c. 644, said:

¶5"To that decree no lien attached such as belongs to judgments generally by virtue of the statute, but only such lien as the decree itself fixed, established, and ordered to be enforced. . . . At any time within ten years subsequent to its rendition, an execution could have been issued upon the decree. . . . After the expiration of ten years from its rendition no execution could have been so issued."

¶6Gill on Missouri Titles (3 Ed.), sec. 1421, page 636, treating this subject, tersely states:

¶7"Special judgments do not expire in three years, 107 Mo. 394,114 Mo. 493 (general tax judgments), 70 Kan. 43 (mechanics' lien), 35 Ohio St. 430 (foreclosure of mortgage), 27 Cyc. 430, 443, 23 Cyc. 394.

¶8"But do expire in ten years, 175 Mo. 63, 12 S.W.2d 438, 27 S.W.2d 711, . . ."

¶9An examination of those cases revealed that they support the statements made. For example, in Boyd v. Ellis, 107 Mo. 394, l.c. 401, 18 S.W. 29, l.c. 30, this court said:

¶10"Besides this, the tax judgment is special, and constitutes a lien on no other property than that upon which the taxes were assessed. We do not see how it can be said the tax lien is merged into a judgment lien so as to expire in three years, as does a general judgment lien. The lien for unpaid taxes is more like a mortgage lien. This court *1153 held long ago that the lien of a mortgage was not merged in a judgment obtained in a proceeding under the statute to foreclose the mortgage. [Riley's Admr. v. McCord's Admr., 21 Mo. 285.] Indeed, the very object of the tax judgment is to enforce the state's lien created by the law, and not to create a new lien."

¶11In like manner it may be said that in the case before us the mechanics' lien judgment did not constitute a lien on any other property [128] except the Rosenzweig lots involved in this suit. The very object of the mechanics' lien decree, entered by the trial court, was to enforce the lien created by the mechanics' lien statute, and the decree did not create a new lien. The statement in the principal opinion to the effect that the decree created a lien is inaccurate. A decree in a mechanics' lien suit perfects and perpetuates the lien created by statute. The decree itself does not bring the lien into existence. [40 C.J. 264, sec. 327.]

¶12After a reconsideration of the question we are constrained to adhere to the conclusions reached in the original opinion. The motion for rehearing and the motion to transfer the cause to the court en banc are hereby overruled.

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