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TITLE XXVII DEBTOR-CREDITOR RELATIONS
CHAPTER 429 STATUTORY LIENS AGAINST REAL ESTATE GENERALLY
429.005 Invalid Waivers
MECHANICS’ AND MATERIALMEN’S LIEN
429.010 Persons Entitled to Lien, Property Encumbered
by Lien
429.012 Notice to Owner, Penalties, Exemption, False Waivers
429.013 Liens Against Residential Property, Definitions, Persons
Entitled to Lien, Consent to Filing of Mechanics Liens, Full
Payment to Contractor a Complete Defense, Forgery, Penalties
429.014 Failure to Pay with Intent to Defraud, Recoupment,
Felony
429.015 Liens of Architects and Engineers, Well Digging, Persons
Entitled to Lien, Design Professionals, Prorata Entitlement,
Defenses
429.020 Liens on Lots for Street and Utility Work
429.030 Property Subject to Lien
429.032 Multiple Lots, Release, Form
429.040 Liens on Contiguous Lots
429.050 Liens on Buildings and Improvements, Removal
429.060 Priorities
429.070 Liens on Leaseholds, Default, Rents
429.080 Contents of Lien, Filing
429.090 Abstract of Lien
429.100 Preliminary Notice
429.110 Service of Notice, Filing
429.120 Acknowledgment of Satisfaction
429.130 Refusal to Satisfy, Penalty
429.140 Contractor to Defend Actions, Owner May Withhold Money
from Contractor
429.150 “Owner or Proprietor” Defined
429.160 Assignments
429.170 Limitation of Actions
429.180 Pleadings
429.190 Parties
429.200 Personal Representatives
429.210 Trial and Judgment
429.220 Judgment by Default
429.230 Service by Publication
429.240 Service and Levy
429.250 Execution
429.260 Prorata Distribution
429.270 Action to Determine Rights of Claimants, Marshalling
and Distribution
429.280 Parties to Equitable Action
429.290 Equitable Action Exclusive
429.300 Stay of Other Suits
429.310 Pleading in Equitable Action Deemed Commencement of
an Action
429.320 Referee, Jury
429.330 Determination of Priorities
429.340 Sale
429.350 Jurisdiction of Associate Circuit Judge
429.360 Practice and Procedure
MISSOURI STATUTES
TITLE XXVII DEBTOR-CREDITOR RELATIONS
CHAPTER 429 STATUTORY LIENS AGAINST REAL ESTATE GENERALLY
429.005 Invalid Waivers
1. An agreement by an original contractor, subcontractor,
supplier or laborer to waive any right to enforce or claim
any lien authorized under this chapter, where the agreement
is in anticipation of and in consideration for the awarding
of a contract or subcontract to perform work or supply materials
for an improvement upon real property, whether expressly stated
or implied, is against public policy and shall be unenforceable.
The provisions of this section
shall not prohibit subordination or release of a lien authorized
under this chapter.
2. Nothing
contained in this section shall be construed to prohibit contractual
provisions requiring lien waivers as a condition for payment.
MECHANICS’ AND MATERIALMEN’S LIEN
429.010 Persons Entitled to Lien, Property Encumbered by Lien
Any person who shall do or perform any work or labor upon,
or furnish any material, fixtures, engine, boiler or machinery
for any building, erection or improvements upon land, or for
repairing the same, or furnish and plant trees, shrubs, bushes
or other plants or provides any type of landscaping goods
or services or who installs outdoor irrigation systems under
or by virtue of any contract with the owner or proprietor
thereof, or his agent, trustee, contractor or subcontractor,
or without a contract if ordered by a city, town, village
or county having a charter form of government to abate the
conditions that caused a structure on that property to be
deemed a dangerous building under local ordinances pursuant
to section 67.410, RSMo, upon complying with the provisions
of sections 429.010 to 429.340, shall have for his work or
labor done, or materials, fixtures, engine, boiler, machinery,
trees, shrubs, bushes or other plants furnished, or any type
of landscaping goods or services provided, a lien upon such
building, erection or improvements, and upon the land belonging
to such owner or proprietor on which the same are situated,
to the extent of three acres; or if such building, erection
or improvements be upon any lot of land in any town, city
or village, or if such building, erection or improvements
be for manufacturing, industrial or commercial purposes and
not within any city, town or village, then such lien shall
be upon such building, erection or improvements, and the lot, tract or parcel of land upon which the same are situated,
and not limited to the extent of three acres, to secure the
payment of such work or labor done, or materials, fixtures,
engine, boiler, machinery, trees, shrubs, bushes or other
plants or any type of landscaping goods or services furnished,
or outdoor irrigation systems installed; except that if such
building, erection or improvements be not within the limits
of any city, town or village, then such lien shall be also
upon the land to the extent necessary to provide a roadway
for ingress to and egress from the lot, tract or parcel of
land upon which such building, erection or improvements are
situated, not to exceed forty feet in width, to the nearest
public road or highway. Such lien shall be enforceable only
against the property of the original purchaser of such plants
unless the lien is filed against the property prior to the
conveyance of such property to a third person.
429.012 Notice to Owner, Penalties, Exemption,
False Waivers
1. Every
original contractor, who shall do or perform any work or labor
upon, or furnish any material, fixtures, engine, boiler or
machinery for any building, erection or improvements upon
land, or for repairing the same, under or by virtue of any
contract, or without a contract if ordered by a city, town,
village or county having a charter form of government to abate
the conditions that caused a structure on that property to
be deemed a dangerous building under local ordinances pursuant
to section 67.410, RSMo, shall provide to the person with
whom the contract is made or to the owner if there is no contract,
prior to receiving payment in any form of any kind from such
person, (a) either at the time of the execution of the contract,
(b) when the materials are delivered, (c) when the work is
commenced, or (d) delivered with first invoice, a written
notice which shall include the following disclosure language
in ten-point bold type:
NOTICE
TO OWNER
FAILURE
OF THIS CONTRACTOR TO PAY THOSE PERSONS SUPPLYING MATERIAL
OR SERVICES TO COMPLETE THIS CONTRACT CAN RESULT IN THE FILING
OF A MECHANIC’S LIEN ON THE PROPERTY WHICH IS THE SUBJECT
OF THIS CONTRACT PURSUANT TO CHAPTER 429, RSMO. TO AVOID THIS
RESULT YOU MAY ASK THIS CONTRACTOR FOR “LIEN WAIVERS”
FROM ALL PERSONS SUPPLYING MATERIAL OR SERVICES FOR THE WORK
DESCRIBED IN THIS CONTRACT. FAILURE TO SECURE LIEN WAIVERS
MAY RESULT IN YOUR PAYING FOR LABOR AND MATERIAL TWICE.
2. Compliance with subsection 1 of this section shall be a
condition precedent to the creation, existence or validity
of any mechanic’s lien in favor of such original contractor.
3. Any original contractor who fails to provide the written
notice set out in subsection 1 of this section, with intent
to defraud, shall be guilty of a class B misdemeanor and any
contractor who knowingly issues a fraudulent lien waiver or
a false affidavit shall be guilty of a class C felony.
4. The provisions of subsections 1 and 2 of this section shall
not apply to new residences for which the buyer has been furnished
mechanics’ and
suppliers’ lien protection through a title insurance
company registered in the state of Missouri.
5. Any
settlement agent, including but not limited to any title insurance
company, title insurance agency, title insurance agent or
escrow agent who knowingly accepts, with intent to defraud,
a fraudulent lien waiver or a false affidavit shall be guilty
of a class C felony if the acceptance of the fraudulent lien
waiver or false affidavit results in a matter of financial
gain to:
(1) The settlement agent or to its officer, director or employee
other than a financial gain from the charges regularly made
in the course of its business;
(2) A person related as closely as the fourth degree of consanguinity
to the settlement agent or to an officer, director or employee
of the settlement agent;
(3) A spouse of the settlement agent, officer, director or
employee of the settlement agent; or
(4) A person related as closely as the fourth degree of consanguinity
to the spouse of the settlement agent, officer, director or
employee of the settlement agent.
429.013 Liens Against Residential Property,
Definitions, Persons Entitled to Lien, Consent to Filing of
Mechanics Liens, Full Payment to Contractor a Complete Defense,
Forgery, Penalties
1. The provisions of this section shall apply only to the
repair or remodeling of or addition to owner-occupied residential
property of four units or less. The term “owner”
means the owner of record at the time any contractor, laborer
or materialman agrees or is requested to furnish any work,
labor, material, fixture, engine, boiler or machinery. The
term “owner-occupied” means that property which
the owner currently occupies, or intends to occupy and does
occupy as a residence within a reasonable time after the completion
of the repair, remodeling or addition which is the basis for
the lien sought, pursuant to this section. The term “residential
property” means property consisting of four or less
existing units to which repairs, remodeling or additions are
undertaken. This section shall not apply to the building,
construction or erection of any improvements constituting
the initial or original residential unit or units or other
improvements or appurtenances forming a part of the original
development of the property. The provisions added to this
subsection in 1990 are intended to clarify the scope and meaning
of this section as originally enacted.
2. No person, other than an original contractor, who performs
any work or labor or furnishes any material, fixtures, engine,
boiler or machinery for any building or structure shall have
a lien under this section on such building or structure for
any work or labor performed or for any material, fixtures,
engine, boiler, or machinery furnished unless an owner of
the building or structure pursuant to a written contract has
agreed to be liable for such costs in the event that the costs
are not paid. Such consent shall be printed in ten point bold
type and signed separately from the notice required by section
429.012
and shall contain the following words:
CONSENT
OF OWNER
CONSENT
IS HEREBY GIVEN FOR FILING OF MECHANIC’S LIENS BY ANY
PERSON WHO SUPPLIES MATERIALS OR SERVICES FOR THE WORK DESCRIBED
IN THIS CONTRACT ON THE PROPERTY ON WHICH IT IS LOCATED IF
HE IS NOT PAID.
3. In addition
to complying with the provisions of section 429.012, every
original contractor shall retain a copy of the notice required
by that section and any consent signed by an owner and shall
furnish a copy to any person performing work or labor or furnishing
material, fixtures, engines, boilers or machinery upon their
request for such copy of the notice or consent. It shall be
a condition precedent to the creation, existence or validity
of any lien by anyone other than an original contractor that
a copy of a consent in the form prescribed in subsection 2
of this section, signed by an owner, be attached to the recording
of a claim of lien. The signature of one or more of the owners
shall be binding upon all owners. Nothing in this section
shall relieve the requirements of any original contractor
under sections 429.010 and 429.012.
4. In the absence of a consent described in subsection 2 of
this section, full payment of the amount due under a contract
to the contractor shall be a complete defense to all liens
filed by any person performing work or labor or furnishing
material, fixtures, engines, boilers or machinery. Partial
payment to the contractor shall only act as an offset to the
extent of such payment.
5. Any person falsifying the signature of an owner, with intent
to defraud, in the consent of owner provided in subsection
2 of this section shall be guilty of a class C felony. Any
original contractor who knowingly issues a fraudulent consent
of owner shall be guilty of a class C felony.
429.014 Failure to Pay with Intent to Defraud,
Recoupment, Felony
1. Any original contractor, subcontractor or supplier who
fails or refuses to pay any subcontractor, materialman, supplier
or laborer for any services or materials provided pursuant
to any contract referred to in section 429.010, 429.012 or
429.013 for which the original contractor, subcontractor or
supplier has been paid, with the intent to defraud, commits
the crime of lien fraud, regardless of whether the lien was
perfected or filed within the time allowed by law.
2. A property owner or lessee who pays a subcontractor, materialman,
supplier or laborer for the services or goods claimed pursuant
to a lien, for which the original contractor, subcontractor
or supplier has been paid, shall have a claim against the
original contractor, subcontractor or supplier who failed
or refused to pay the subcontractor, materialman, supplier
or laborer.
3. Lien fraud is a class C felony if the amount of the lien
filed or the aggregate amount of all liens filed on the subject
property as a result of the conduct described in subsection
1 of this section is in excess of five hundred dollars, otherwise
lien fraud is a class A misdemeanor. If no liens are filed,
lien fraud is a class A misdemeanor.
429.015
Liens of Architects and Engineers, Well Digging, Persons Entitled
to Lien, Design Professionals, Prorata Entitlement, Defenses
1. Every registered architect or corporation registered to
practice architecture, every registered professional engineer
or corporation registered to practice professional engineering,
every registered landscape architect or corporation registered
to practice landscape architecture, and every registered land
surveyor or corporation registered to practice land surveying,
who does any landscape architectural, architectural, engineering
or land surveying work upon or performs any landscape architectural,
architectural, engineering or land surveying service directly
connected with the erection or repair of any building or other
improvement upon land under or by virtue of any contract with
the owner or lessee thereof, or such owner’s or lessee’s
agent, trustee, contractor or subcontractor, or without a
contract if ordered by a city, town, village or county having
a charter form of government to abate the conditions that
caused a structure on that property to be deemed a dangerous
building under local ordinances pursuant to section 67.410,
RSMo, upon complying with the provisions of this chapter,
shall have for such person’s landscape architectural,
architectural, engineering or land surveying work or service
so done or performed, a lien upon the building or other improvements
and upon the land belonging to the owner or lessee on which
the building or improvements are situated, to the extent of
one acre. If the building or other improvement is upon any
lot of land in any town, city or village, then the lien shall
be upon such building or other improvements, and the lot or
land upon which the building or other improvements are situated,
to secure the payment for the landscape architectural, architectural,
engineering or land surveying work or service so done or performed.
For purposes of this section, a corporation engaged in the
practice of architecture, engineering, landscape architecture,
or land surveying, shall be deemed to be registered if the
corporation itself is registered under the laws of this state
to practice architecture, engineering or land surveying.
2. Every mechanic or other person who shall do or perform
any work or labor upon or furnish any material or machinery
for the digging of a well to obtain water under or by virtue
of any contract with the owner or lessee thereof, or such
owner’s or lessee’s agent, trustee, contractor
or subcontractor, upon complying with the provisions of sections
429.010 to 429.340 shall have for such person’s work
or labor done, or materials or machinery furnished, a lien
upon the land belonging to such owner or lessee on which the
same are situated, to the extent of one acre, to secure the
payment of such work or labor done, or materials or machinery
furnished as aforesaid.
3. Every mechanic or other person who shall do or perform
any work or labor upon, or furnish any material, fixtures,
engine, boiler or machinery, for the purpose of demolishing
or razing a building or structure under or by virtue of any
contract with the owner or lessee thereof, or such owner’s
or lessee’s agent, trustee, contractor or subcontractor,
or without a contract if ordered by a city, town, village
or county having a charter form of government to abate the
conditions that caused a structure on that property to be
deemed a dangerous building under local ordinances pursuant
to section 67.410, RSMo, upon complying with the provisions
of sections 429.010 to 429.340, shall have for such person’s
work or labor done, or materials, fixtures, engine, boiler
or machinery furnished, a lien upon the land belonging to
such owner or lessee on which the same are situated, to the
extent of one acre. If the building or buildings to be demolished
or razed are upon any lot of land in any town, city or village,
then the lien shall be upon the lot or lots or land upon which
the building or other improvements are situated, to secure
the payment for the labor and materials performed.
4. The provisions of sections 429.030 to 429.060 and sections
429.080 to 429.430 applicable to liens of mechanics and other
persons shall apply to and govern the procedure with respect
to the liens provided for in subsections 1, 2 and 3 of this
section.
5. Any design professional or corporation authorized to have
lien rights under subsection 1 of this section shall have
a lien upon the building or other improvement and upon the
land, whether or not actual construction of the planned work
or improvement has commenced if:
(1) The owner or lessee thereof, or such owner’s or
lessee’s agent or trustee, contracted for such professional
services directly with the design professional or corporation
asserting the lien; and
(2) The owner or lessee is the owner or lessee of such real
property either at the time the contract is made or at the
time the lien is filed.
6. Priority between a design professional or corporation lien
claimant and any other mechanic’s lien claimant shall
be determined pursuant to the provisions of section 429.260
on a pro rata basis.
7. In any civil action, the owner or lessee may assert defenses
which include that the actual construction of the planned
work or improvement has not been performed in compliance with
the professional services contract, is impracticable or is
economically infeasible.
8. The agreement is in writing.
429.020 Liens on Lots for Streets and Utility
Work
Every mechanic or other person who shall do or perform any
work or labor upon or furnish any material for the construction
of any street, curb, sidewalk, sewerline, waterline, or other
pipeline in front of, adjacent to, along or adjoining any
lot, tract or parcel of land in any town, city or village,
under or by virtue of any contract with the owner or proprietor
of such lot, tract or parcel of land, or his agent, trustee,
contractor or subcontractor, or without a contract if ordered
by a city, town, village or county having a charter form of
government to abate the conditions that caused a structure
on that property to be deemed a dangerous building under local
ordinances pursuant to section 67.410, RSMo, shall, upon complying
with the provisions of sections 429.010 to 429.340, have a
lien upon such lot, tract or parcel of land for his work or
labor done, or material furnished.
429.030
Property Subject to Lien
The entire land, to the extent aforesaid, upon which any such
building, erection or improvement is situated, or in front
or alongside of which such street, curb, sidewalk, sewerline,
waterline or other pipeline shall have been built, including
as well that part of said land which is not covered with such
building, erection or other improvement as that part thereof
which is covered with the same, shall be subject to all liens
created by sections 429.010 to 429.340 to the extent, and
only to the extent, of all the right, title and interest owned
therein by the owner or proprietor of such building, erection
or improvement, and for whose immediate use or benefit the
labor was done or the things furnished.
429.032 Multiple Lots, Release, Form
1. When multiple lots, tracts or parcels are the subject of
one mechanic’s lien created by virtue of sections 429.010
to 429.340, it shall be permissible for every mechanic or
other person who has a lien upon such multiple lots, tracts
or parcels to release one or more of the lots, tracts or parcels
from the mechanic’s lien. The lots, tracts or parcels
released, and the amount of mechanic’s lien debt attributable
to such lot, tract or parcel so released shall be specified
by the mechanic’s lien claimant.
2. Whenever a mechanic’s lien filed upon multiple lots,
tracts or parcels is partially released as to one or more
of the lots, tracts or parcels, it shall be the duty of the
mechanic’s lien claimant to acknowledge upon the record
or the margin thereof, in the office of the clerk of the circuit
court, the portion of the mechanic’s lien debt that
is satisfied and the lots, tracts or parcels which are being
released. The acknowledgment shall be sufficient if filed
with the clerk of the circuit court in the following form:
PARTIAL RELEASE OF MECHANIC’S LIEN
STATE OF MISSOURI ) ) SS. COUNTY OF ________ ) COMES NOW ______,
(name of lien claimant) the lien claimant and does hereby
partially release its mechanic’s lien filed on ______,
(date lien filed) and filed for record as lien number _______,
(lien number or book and page numbers)
The amount of the original mechanic’s lien debt is $________
The amount of the original mechanic’s lien debt which
is now satisfied is $___________
The lots, tracts or parcels which are being released are more
fully described as follows: (Legal description of lots, tracts
or parcels which are being released)
_______________________________ Lien Claimant
By ____________________________(Signature of authorized representative)
(FOR INDIVIDUAL LIEN CLAIMANT)
On this _____ day of _____, 19__, before me personally appeared
______, to me known to be the person described in and who
executed the foregoing instrument, and acknowledged that he/she
executed the same as his/her free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed
my official seal in the county and state aforesaid, the day
and year first above written.
________________________________ Notary Public
My commission expires: ____________
OR (FOR CORPORATE LIEN CLAIMANT)
On this _____ day of _____, 20__, before me personally appeared
_____, to me personally known, who, being by me duly sworn,
did say that he is the _____ of _____, a Missouri corporation,
and that the seal affixed to the foregoing corporation, and
that the seal affixed to the foregoing instrument is the corporate
seal of said corporation, and that said instrument was signed
and sealed on behalf of said corporation by authority of its
board of directors; and said ________ acknowledged said instrument
to be the free act and deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed
my official seal in the county and state aforesaid, the day
and year first above written.
_______________________________ Notary Public
My commission expires: ___________.
429.040
Liens on Contiguous Lots
When the improvements consist of two or more buildings, united
together and situated Upon the same lot or contiguous lots,
or separate buildings upon contiguous lots, or a continuous
or connected sidewalk in front or alongside of contiguous
lots, and erected under one general contract, it shall not
be necessary to file a separate lien upon each building or
lot for the work done or materials furnished in the erection
of such improvements.
429.050 Liens on Buildings and Improvements,
Removal
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 encumbrance 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 buildings, erections or improvements sold under execution,
and the purchaser may remove the same within a reasonable
time thereafter; provided, that nothing contained in this
section shall be so construed as to allow any such sidewalk
as is mentioned in sections 429.010 to 429.340 to be so sold
under execution or so removed.
429.060 Priorities
The lien for work and materials as aforesaid shall be preferred
to all other encumbrances which may be attached to or upon
such buildings, bridges or other improvements, or the ground,
or either of them, subsequent to the commencement of such
buildings or improvements.
429.070 Liens on Leaseholds, Default, Rents
1. Every building, erection, improvement and plant erected
or constructed, and all materials, fixtures, engines, boilers,
pumps, belting, pulleys, shafting, machinery and other personal
property furnished, or placed on licensed or leased lots or
lands shall, regardless of whether or not the owner of the
license or lease has the right thereunder to remove the same
or other personal property from such licensed or leased premises
during or at the end of the term thereof, be held for the
debt contracted for on account of the same and also the licensed
interest or leasehold term for such lot and land on which
the same is placed or erected.
2. Every mechanic, person or corporation who shall erect or
construct any building, plant, improvement, or erection, or
who shall furnish any material, fixture, engine, boiler, pump,
belting, pulley, shafting, machinery or other personal property
upon either licensed or leased lots or lands under or by virtue
of any contract or account with the owner or proprietor of
the license or lease or with his or its agent, or without
a contract if ordered by a city, town, village or county having
a charter form of government to abate the conditions that
caused a structure on that property to be deemed a dangerous
building under local ordinances pursuant to section 67.410,
RSMo, upon complying with the provisions of sections 429.010
to 429.340, shall have a lien upon such building, plant, improvement,
erection, and also upon such materials, fixtures, engines,
boilers, pumps, belting, pulleys, shafting, machinery and
such other personal property and also upon the license or
lease on such lots or lands to the full extent of the number
of acres or lots held under such license or lease by the owner
thereof, and regardless of whether or not the owner of such
license or lease has the right thereunder to remove either
during or at the end of the term thereof such building, plant,
improvement, erection, materials, fixtures, engines, boilers,
pumps, belting, pulleys, shafting or machinery or other personal
property thereon.
3. Every mechanic, person or corporation who shall do or perform
any work or labor upon or repair any fixture, engine, boiler,
pump, belting, pulley, shafting, machinery or other personal
property belonging to a licensee or lessee and located upon
either licensed or leased lots shall have for his work or
labor done in repairing such personal property of the lessee
or licensee, a lien upon such fixtures, engines, boilers,
pumps, belting, pulleys, shafting, machinery or other personal
property belonging to the lessee.
4. In case the licensee or lessee shall have forfeited his
license or lease, the purchaser of the buildings, plants,
erections, improvements, materials, fixtures, engines, boilers,
pumps, belting, pulleys, shafting, machinery or other personal
property and licensed interest or leasehold term or so much
thereof as remains unexpired under the provisions of sections
429.010 to 429.340 shall be held to be the assignee of such
licensed interest or leasehold term and as such shall be entitled
to pay to the licensor or lessors all arrears of rents or
other money, interest and costs due under said license or
lease unless the licensor or lessor shall have regained possession
of the licensed, or leasehold land, or obtained judgment for
the possession thereof on account of the noncompliance by
the licensee or lessee with the terms of the license or lease
prior to the commencement of the buildings, erections, plants,
or improvements erected or constructed prior to the time the
materials, fixtures, engines, boilers, pumps, belting, pulleys,
shafting, machinery or other personal property is furnished,
or placed thereon, in which case the purchaser of the buildings,
erections, plants, improvements, materials, fixtures, engines,
boilers, pumps, belting, pulleys, shafting, machinery or other
personal property shall have the right to remove the same
within sixty days after the purchase thereof, and the owner
of the ground shall receive the rent due to him payable out
of the proceeds of the sale, according to the terms of the
license or lease, down to the time of removing the building,
erections, plants, improvements, materials, fixtures, engines,
boilers, pumps, belting, pulleys, shafting, machinery or other
personal property.
429.080 Contents of Lien, Filing
It shall be the duty of every original contractor, every journeyman
and day laborer, and every other person seeking to obtain
the benefit of the provisions of sections 429.010 to 429.340,
within six months after the indebtedness shall have accrued
to file with the clerk of the circuit court of the proper
county a just and true account of the demand due him or them
after all just credits have been given, which is to be a lien
upon such building or other improvements, and a true description
of the property, or so near as to identify the same, upon
which the lien is intended to apply, with the name of the
owner or contractor, or both, if known to the person filing
the lien, which shall, in all cases, be verified by the oath
of himself or some credible person for him.
429.090 Abstract of Lien
It shall be the duty of the clerk of the circuit court to
endorse upon every account the date of its filing, and maintain
an abstract thereof, containing the date of its filing, the
name of the person seeking to enforce the lien, the amount
claimed, the name of the person against whose property the
lien is filed, and a description of the property charged with
the same.
429.100
Preliminary Notice
Every person except the original contractor, who may wish
to avail himself of the benefit of the provisions of sections
429.010 to 429.340, shall give ten days’ notice before
the filing of the lien, as herein required, to the owner,
owners or agent, or either of them, that he holds a claim
against such building or improvement, setting forth the amount
and from whom the same is due. Such notice may be served by
any officer authorized by law to serve process in civil actions,
or by any person who would be a competent witness. When served
by an officer, his official return endorsed thereon shall
be proof thereof, and when served by any other person, the
fact of such service shall be verified by affidavit of the
person so serving.
429.110 Service of Notice, Filing
Whenever property is sought to be charged with a lien under
sections 429.010 to 429.340, and the owner of the property
so sought to be charged shall not be a resident of this state,
or shall have no agent in the county in which said property
is situate, or when such owner shall be a resident of the
state, but conceals himself, or has absconded, or absents
himself from his usual place of abode, so that the notice
required by section 429.100 cannot be served upon him, then,
and in every such case, such notice may be filed with the
recorder of deeds of the county in which such property is
situate, and when filed shall have like effect as if served
upon such owner or his agent in the manner contemplated by
section 429.100; and a copy of such notice so filed, together
with the certificate of such recorder of deeds that the same
is a correct copy of the notice so filed, shall be received
in all courts of this state as evidence of the service, as
herein provided, of such notice; and the recorder of deeds
in each county of this state shall receive, file and keep
every such notice so presented to him for filing, and shall
further record the same at length in a separate book appropriately
entitled; and for such service so performed, such recorder
shall receive for each notice the sum of twenty-five cents,
and for each copy so certified as aforesaid of each of said
notices, shall receive the sum of fifty cents, to be paid
by the party so filing or procuring such certified copy, as
the case may be, and the costs of filing and of one certified
copy shall be taxed as costs in any lien suit to which the
same pertains, to abide the result of the suit.
429.120 Acknowledgment of Satisfaction
Whenever any debt, which is a lien upon any building or other
improvement, shall be paid or satisfied, the creditor, if
required, shall file an acknowledgment of such satisfaction
with the clerk of the circuit court.
429.130 Refusal to Satisfy, Penalty
If any creditor refuse to enter satisfaction within ten days
after payment and request, as aforesaid, he shall be liable
to any person injured, to the amount of such injury and costs
of suit.
429.140
Contractor to Defend Actions, Owner May Withhold Money from
Contractor
In all cases where a lien shall be filed under the provisions
of sections 429.010 to 429.340 by any person other than a
contractor, it shall be the duty of the contractor to defend
any action brought thereupon, at his own expense; and, during
the pendency of such action, the owner may withhold from the
contractor the amount of money for which such lien shall be
filed; and in case of judgment against the owner or his property
upon the lien, he shall be entitled to deduct from any amount
due by him to the contractor the amount of such judgment and
costs, and, if he shall have settled with the contractor in
full, shall be entitled to recover back from the contractor
any amount so paid by the owner for which the contractor was
originally the party liable.
429.150
“Owner or Proprietor” Defined
Every person, including all cestui que trust, for whose immediate
use, enjoyment or benefit any building, erection or improvement
shall be made, shall be included by the words “owner
or proprietor” thereof under sections 429.010 to 429.340,
not excepting such as may be minors over the age of eighteen
years, or married women.
429.160 Assignments
Any two or more persons having filed in the clerk’s
office mechanics’ liens may assign to each other or
to any other person all their right, title and interest in
and to such mechanics’ liens, and the assignee thereof
may bring suit in his name and enforce all such assigned liens
as fully as if the same had not been assigned.
429.170 Limitation of Actions
All actions under sections 429.010 to 429.340 shall be commenced
within six months after filing the lien, and prosecuted without
unnecessary delay to final judgment; and no lien shall continue
to exist by virtue of the provisions of said sections, for
more than six months after the lien shall be filed, unless
within that time an action shall be instituted thereon, as
herein prescribed.
429.180 Pleadings
The pleadings, practice, process and other proceedings in
cases arising under sections 429.010 to 429.340 shall be the
same as in ordinary civil actions and proceedings in circuit
courts, except as herein otherwise provided. The petition,
among other things, shall allege the facts necessary for securing
a lien under said sections, and shall contain a description
of the property charged therewith.
429.190 Parties
In all suits under sections 429.010 to 429.340 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.
429.200 Personal Representatives
In case of the death of any of the parties specified in section
429.190, whether before or after suit brought, the personal
representative of such deceased party shall be made plaintiff
or defendant, as the case may require, and it shall not be
necessary to make the heirs or devisees of such deceased persons
parties to the suit; but if there is no personal representative
of such deceased person, then his heirs or devisees may be
made parties, and if any of the heirs or devisees are minors
under the age of eighteen years, their guardians or conservators
of their estates shall he made parties with them; but if such
minors shall have no guardians or conservators of their estates,
the court in which the suit is pending shall appoint guardians
ad litem for them in the same manner and under the same rules
and regulations as guardians ad litem are appointed in proceedings
for partition of real estate, and the judgment and proceedings
of such court in any such suits shall be as binding on such
minors as if they were over the age of eighteen years.
429.210 Trial and Judgment
The court shall ascertain, by a fair trial in the usual way,
the amount of the indebtedness for which the lien is prosecuted,
and may render judgment therefore in any sum not exceeding
the amount claimed in the demand filed with the lien, together
with interest and costs, although the creditor may have unintentionally
failed to enter in his account filed the full amount of credits
to which the debtor may be entitled.
429.220 Judgment by Default
Judgment by default shall be rendered against every defendant
who, after being summoned or notified according to law, shall
not appear and plead within the time allowed in ordinary civil
actions.
429.230 Service by Publication
When the debtor has not been served with summons according
to law, and has not appeared, but has been lawfully notified
by publication, the judgment, if for the plaintiff, shall
be that he recover the amount of the indebtedness found to
be due, and costs of suit, to be levied of the property charged
with the lien therefore, which said property shall be correctly
described in said judgment.
429.240 Service and Levy
When the debtor has been served with summons according to
law, or appears to the action without service, the judgment,
if for the plaintiff, shall be against such debtor as in ordinary
cases, with the addition that if no sufficient property of
the debtor can be found to satisfy such judgment and costs
of suit, then the residue thereof be levied as provided in
section 429.230.
429.250 Execution
The execution to be issued shall be a special fieri facias,
and shall be in conformity with the judgment, and such writ
shall be returnable as ordinary executions; and the advertisement,
sale and conveyance of real or personal estate under the same
shall be made as under ordinary executions.
429.260 Prorata Distribution
The liens for work and labor done or things furnished, as
specified in sections 429.010 to 429.340, shall be upon an
equal footing, without reference to the date of filing the
account or lien; and in all cases where a sale shall be ordered
and the property sold, which may be described in any account
or lien, the proceeds arising from such sale, when not sufficient
to discharge in full all the liens against the same without
reference to the date of filing the account or lien, shall
be paid pro rata on the respective liens; provided, such account
or liens shall have been filed and suit brought as provided
by said sections.
429.270 Action to Determine Rights of Claimants,
Marshalling and Distribution
Any and all liens in sections 429.010 to 429.340 provided
for may be adjudicated and determined and the rights of all
parties interested in the same and in the property and of
any of the property against which the same is claimed may
be adjudicated, determined and enforced in one action which
may be brought by any such lien claimant after the statement
for such lien is filed in the office of the clerk of court,
as herein provided, or such action may be brought by any owner
or lessee of the property or any of it to be affected, or
mortgagee or holder of any other encumbrance thereon. Such
action shall be an equitable action for the purpose of determining
the various rights, interest and liens of the various mechanics’
lien claimants and claimants of other liens and owner of any
interest in or leasehold upon said property and for enforcing
the rights of any and all such persons in, to or against the
property, being the lands and buildings and either of the
same and for sale of such property, land and buildings or
either of the same and for marshalling and distribution of
the proceeds thereof among the parties according to their
respective legal and equitable rights therein. Such action
shall be an equitable action for the purpose of determining,
establishing and enforcing the various and respective rights
of the parties thereto and for the purpose of marshalling,
applying and distributing the proceeds of the sale of such
property that may be ordered and decreed in said action.
429.280
Parties to Equitable Action
1. All persons claiming any lien or encumbrance upon, and
all persons having any rights in or against and all owners
and lessees of said property to be affected and any of it,
all as may be disclosed by the proper public records, shall
be made parties to said action and parties whose interests
are divers may join as plaintiffs therein, but if they do
not join as plaintiffs, then they shall be made defendants.
2. Any person, lien claimant or other having any rights in,
to, against or upon said property and any of it whose rights
are not disclosed at the time of bringing said action by the
proper record, shall be bound by the proceedings, orders and
judgments in said actions, but any such person shall be entitled
upon application to the court to be made a party to said action
at any time before final disposition by the final judgment
of the court therein of the proceeds of said property and
shall be entitled according to their respective rights to
participate in the proceeds of the sale of such property and
any of it, as the same may be there after received or then
remain under the jurisdiction of the court.
3. If at the commencement of said action any person whose
rights are disclosed by the record is omitted as a party,
he may thereafter be made party to said action either upon
his own application or upon the application of any other party
to said action or by the court of its own motion.
4. If any party to said action shall die or cease to exist
during the pendency of said action before the judgment or
order of sale therein of said property, then the proper representatives,
either administrator or other proper successor in right, shall
be substituted by order of the court upon motion and notice
of motion without formal revivor of said action.
429.290 Equitable Action Exclusive
After any such equitable action is commenced, the same shall
be exclusive of other remedies for the enforcement of mechanics’
liens, but until such action is brought, the other remedies
provided for in sections 429.010 to 429.340 shall remain and
exist. And the procedure in any such equitable action, except
as herein otherwise provided, shall be governed by the law
and rules of procedure in civil actions generally.
429.300 Stay of Other Suits
The equitable action above provided for shall be brought in
the proper court of record regardless of the amount claimed
by the plaintiff or plaintiffs in such action, and all other
suits that may have been brought on any mechanic’s lien
claim or demand shall be stayed and no further prosecuted,
and the parties in any such other suit shall be made parties
to such equitable action as in the foregoing sections provided,
and any costs rightfully accrued in behalf of any lien claimant
in any such other action shall be and become a part of the
lien claim of such party. After the institution of such equitable
action no separate suit shall be brought upon any mechanic’s
lien or claim against said property, or any of it, but the
rights of all persons shall be adjusted, adjudicated and enforced
in such equitable suit.
429.310 Pleading in Equitable Action Deemed
Commencement of an Action
Any answer, or other pleading, or motion, or entry of appearance
followed by pleading in due course, filed or made in any such
equitable action by any mechanic’s lien claimant, within
six months after the preliminary statement for the lien of
such claimant has been filed in the proper office therefore,
as required by law, or, when filed, or made, at the time required
by law on a summons in such equitable action, issued before
or within such six-months’ period within which suits
on mechanics’ liens including this equitable action
are required to be commenced, provided such equitable action
is still pending, shall be deemed a commencement of an action
by such mechanic’s lien claimant.
429.320 Referee, Jury
At the instance of any party to said action the court may
appoint a referee to hear and report the evidence and to make
conclusions and findings of fact and law therein and to report
the same to the court for its further action thereon, and
the court may confirm and approve said report in full or in
parts and may modify the same and make other findings from
the evidence reported as may be just and proper and render
judgment accordingly. The court shall not appoint in any such
equitable action any referee of its own motion. And in any
such action the court may, if it deem the parties entitled
thereto, or in its discretion submit any issue upon any separate
claim or demand to a jury, and any two or more of such issues
may in the discretion of the court be submitted to one jury
or the court may submit separately such issues to a jury and
shall be bound by the findings of the jury thereon in the
further proceedings in said cause, subject to the power of
the court to grant new trial of such issues.
429.330 Determination of Priorities
This equitable action shall not apply to instances in which
there is only one mechanic’s lien claimed against the
property and any of it, but in any suit thereon the court
shall determine the respective priorities as between such
mechanic’s lien and any other lien or encumbrance and
enforce the same accordingly.
429.340 Sale
Upon sale and execution of deed for the property sold in such
equitable action, either by special commissioner appointed
to make said sale or by the sheriff or successor of such commissioner
or sheriff, the court may order delivery of possession of
the premises sold to the purchaser at such sale and enforce
such order by writ of assistance or other proper process against
all persons to said action and all persons bound thereby,
including those whose interests did not appear of record at
the commencement of said action and all persons becoming interested
in said property or obtaining possession thereof after the
commencement of said action, which shall be the filing of
the petition therein. And the court shall have full power
and jurisdiction to speed said action and require service
of process to be obtained speedily upon all parties therein
at the instance of any party either plaintiff or defendant
in said action or of its own motion.
429.350
Jurisdiction of Associate Circuit Judge
Associate circuit judges may exercise jurisdiction without
special assignment in all actions brought to enforce mechanics’
liens when the amount or balance claimed to be due does not
exceed the monetary jurisdiction which associate circuit judges
may exercise in ordinary civil actions without special assignment.
429.360 Practice and Procedure
The process, practice and procedure, including applications
for trial de novo, in suits to enforce mechanics’ liens
which are heard by an associate circuit judge without special
assignment shall be as nearly as practicable the same as provided
in other civil suits heard by associate circuit judges. When
a case is specially assigned to an associate circuit judge
to hear upon a record, the process, practice and procedure,
including appeals, shall be the same as if the case was being
heard by a circuit judge.
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