This is a suit to restrain the defendant from tearing down or removing certain houses, standing on land belonging to the plaintiff.
The gist of the controversy can be stated in a few lines, discarding many irrelevant particulars which appear in the record.
The dispute involves the title to the houses mentioned. The defendant claims them, and the right to remove them, under proceedings to enforce a mechanic’s lien. The plaintiff claims them as purchaser under a deed of trust.
The common source of title is Mary Groodin, who in 1889 owned the land on which the houses now stand. In November, 1889, she and her husband executed a deed of tru'st, in usual form, conveying this land to Samuel Foster, as trustee, to secure payment of a bond for $4,150 to the present plaintiff. That deed was duly recorded, November 26, 1889. Under it, a sale, after default, occurred, at which plaintiff became the purchaser, by deed from the trustee, November 21, 1890.
Plaintiff is in possession of the land under this title.
Defendant’s claim is based on a mechanic’s lien (for several hundred dollars) duly filed, August 27, *3861890, in which, the earliest item is of date, March 17, 1890. The lien is founded on a contract between Mary G-oodin and her husband, and the lienor, Mr. Ryus. The latter brought suit to enforce the lien, making Mr. and Mrs. Ooodin parties defendant, and also, at first, Mr. Hicks and Mr. Foster (the trustee), as claiming to own some interest in the property. But before judgment that cause was dismissed as to Messrs. Hicks and Foster. The other defendants made default, and the then plaintiff took judgment, May 4, 1891, against the G-oodins, for the amount of-indebtedness, and of lien for that sum “against the real estate and buildings,” with an order for special execution accordingly. Under process on that judgment the lienor purchased the land and houses, July 2, 1891, and received a sheriff’s deed, in' due course, to that effect.
Afterwards, the present defendant bought the interest of the lienor, and gave written notice to plaintiff that he (defendant), as the owner of the buildings oh the land mentioned, intended within thirty days to procéed to remove them by virtue of the purchase at the sheriff’s sale, etc. ,
At this juncture the plaintiff sought the interposition of a court of equity, and secured a temporary order restraining defendant from interfering with the buildings.
On final hearing, the injunction was made perpetual.
Defendant then appealed,, after taking the ordinary steps for that purpose.
We should regard the case as too plain for discussion were it not for remarks that have fallen from some of our brethren of the state judiciary in reference to the bearing of the mechanics’ lien law upon somewhat similar facts.
The defendant conceded at the trial that plaintiff *387had paramount right to the land itself; hut he insisted that his (defendant’s) claim to .the buildings thereon had priority, mainly because of the terms of the following section, viz.:
“Sec. 6707. Priority of lien over other incum-brances. — The lien for the things aforesaid, or work, shall attach to the buildings, erections or improvements for which they were furnished or the work was done, in preference to any prior lien or incumbrance or mortgage upon the land upon which said buildings, erections, improvements or machinery have been erected or put; and any person enforcing such lien may have such building, erection or improvement sold under execution, and the purchaser may remove the same within a reasonable time thereafter.” R. S. 1889.
It may be well, at this point, to quote some other parts of our positive law which we suppose to have some relevancy to the matter in hand.
“Sec. 6720. * * * no lien shall continue to exist, by virtue of the provisions of this article, for more than ninety days after the lien shall be filed, unless within that time an action shall be instituted thereon * *
“Sec. 6712. * * * The petition, among other things, shall allege the facts necessary for securing a lien under this article, and shall contain a description of the property charged therewith.”
“Sec. 6713. In all suits under this article the parties to the contract shall, and all other persons interested in the matter in controversy or in the property charged with the lien may, be made parties, but such as are not made parties shall not be bound by any such proceedings.”
By sections 6717 and 6718 it is provided that where (as in the lien suit in question) the debtor has been served with process, or appears, the judgment, if for *388plaintiff, shall be against the debtor, as in ordinary-cases, and that, if no sufficient property of his be found to satisfy the judgment and costs of suit, the residue thereof shall be levied “of the property charged with the lien therefor, which said property shall be correctly described in said judgment.”
As has been said here on a former occasion, the statute creating and regulating mechanics’ liens “applies, by its own force, to every transaction that parties, by their voluntary action, bring within its terms.”
A mortgagee who accepts real estate as security for a loan does so subject to the existing law, which enters into the contract as a part of it, and permits the subjection of every improvement upon realty to the demand of the person whose labor or materials entered into that improvement in the circumstances defined by the statute. R. S., 1889, sec. 6705.
But the priority thus given to the lien of the mechanic, as against the holder of a prior incumbrance, must be established in the mode prescribed by the law-.
The parties to the contract under which the material or labor was furnished are necessary parties to the adjudication of the lien. If it be sought, moreover, to assert its priority, by virtue of the statute, over the liens of others which antedate it, then they should be brought before the court as “persons interested in the property charged with the lien,” in order that they may be heard as to the validity of the claim for a lien upon their interest or estate.
This legislation on its face, we think, discloses that it was never intended that the exceptional precedence of such a lien over other incumbrances might be asserted without an adjudication. of the right to the lien as against those adversely interested in the property.
*389Hence it is expressly declared that the latter shall not be bound by the judgment if not parties to the case. This declaration embodies a principle of natural justice, as applied to such a state of affairs as here confronts us. If the lien which the statute permits to be fixed upon buildings, as a separate part of the land on which they stand, is sought to be asserted, those against whom such right is claimed should be brought in, that they may be heard, before the lien becomes an adjudged charge upon their property.
A law which would sanction the enforcement of such a charge without notice to the owner or opportunity for a hearing as to its merits, would have to be, at least, very clear in its terms, and leave no reasonable room for any other construction. In the statute before us the lawmakers have distinctly indicated quite the contrary purpose. Persons “interested in the property charged with the lien’’ may be made parties. In the same» connection it is added that “such as are not made parties shall not be bound by any such proceedings.” What could be plainer or more just?
The mechanic’s lien law should be liberally construed as remedial legislation. But it was never designed to permit the establishment of a lien against the rights of persons holding titles superior to that of the lien debtor without an adjudication of the lien as to them.
Viewing the mechanic’s lien enactment as an entirety, it is evident that the proceedings authorized by it have two distinct objects: first, the ascertainment of the debt due by the principal debtor; secondly, the declaration that a lien exists against the property chargeable therewith, “which said property shall be correctly described in said judgment.” R. S., 1889, see. 6717.
A lien may be fixed upon a building, under sec*390tion 6707, in some circumstances, although the entire land may not be subject to the indebtedness; but to affect the interest of a party whose rights in the building are superior to the lien debtor, that party (under section 6713) must be afforded an opportunity to be heard as to the truth of the facts, on which such claim of lien is founded; otherwise, he will'‘not be bound by any such proceedings,” as the statute declares expressly.
As to the vested estate of the mortgagee, in and to the building, the proceeding to assert a lien against the holder of the equity of redemption only, is ££a thing affecting others,” under the plain provision of our law.
We think this view is in accord with Coe v. Ritter (1885), 86 Mo. 277, the last previous ruling by the supreme court on this point.
It would serve no useful purpose to attempt a review of earlier cases or of the decisions of 1 other courts on the subject, as we are satisfied that the conclusion we have reached gives effect to the evident purpose of the statute. The rulings of the trial judge were to the same purport. We agree to affirm the judgment.
Black, C. J., and Brace and Macfarlane, JJ., concur.