Stark Co. v. Keystone Co. , 92 Colo. 259 ( 1933 )

Plaintiffs in error say that assuming they may be without such right in relation to the real estate proper, under the statute they should at least be entitled to enforce their liens as against the improvements, the result of their labor and material. We are not deaf to their appeal, and not a little moved in sympathy. But, unfortunately, that which operates to defeat them generally, namely, failure to make defendant in error a party when they sought to enforce and foreclose their mechanics' liens, works likewise in detail. The Supreme Court of Missouri, considering a similar situation, said: "Under the first quoted section, the priority of a mortgage on the land would still allow the mechanic lienor a priority over the improvements put upon the land, while by the terms of section 6711, a mechanic's lien would enjoy preference and priority both as to land and improvements over a subsequent mortgage. But whether the mechanic's lien have priority of the mortgage, or viceversa, the necessity for the lienor when proceeding to establish and to foreclose his lien (for the process is atwo fold one) to make the mortgagee a party would seem to be obvious. * * * Take the case of a mortgagee who holds a mortgage on certain land; afterwards a building is erected thereon, and a lien paper is filed against the building. If that lien paper is in any sense invalid, or suit be not brought thereon in time, then the mortgagor becomes the absolute owner of the building, subject, however, to the rights of the mortgagee who has rights superior to those of the lien debtor, and, therefore, has a right to be heard when the mechanic's lienor attempts to establish his lien against the building or against both building and land and to foreclose the same; because, peradventure, he may be able to show invalidating facts, to wit, that the lien paper was not filed in time; that it was not properly itemized; or not properly authenticated; or suit not brought within the proper time. All these and other invalidating facts are open to the mortgagee, whether prior or subsequent, to prove. If he prove any one of them he defeats the establishment of the lien, and also its foreclosure. In order that he may do this, an opportunity to be heard is a sine qua non. and must be given him." Russell v. Grant, 122 Mo. 161, 173,26 S.W. 958, 43 A.S.R. 563. See, also, Bitter v. MouatLumber Co., 10 Colo. App. 307, 316, 51 P. 519, 522, 18 Rawle C. L. 982, 983, § 126.

[7] Nor are plaintiffs in error aided by the fact that defendant in error could have intervened in the liens proceeding, and did not, for such step was not obligatory.Hassall v. Wilcox, 130 U.S. 493, 503, 9 Sup. Ct. 590,32 L. Ed. 1001. "We know of no statute," says our Court of Appeals, "which requires the holder of a mortgage or deed of trust to come into a proceeding of this kind at any time unless brought in as a party in order to maintain his lien." Bitter v. Mouat Lumber Co., supra.

The petition for rehearing is denied.

MR. JUSTICE BOUCK not participating.