author: SIMEONE, Judge.

text:
    Jules M. O’NEIL, Plaintiff-Respondent, v. Robert P. BAINE, Jr., et al., Defendants-Appellants.
    No. 60792.
    Supreme Court of Missouri, en banc.
    July 11, 1978.
    John D. Ashcroft, Atty. Gen., William F. Arnet, S. Joel Wilson, Asst. Attys. Gen., Jefferson City, for appellants.
    John T. Sluggett, III, Clayton, for respondent.
    Fred Boeckmann, Clayton, amicus curiae.
   SIMEONE, Judge.

I.

This is an appeal from a judgment of the Circuit Court of St. Louis County entered on May 4, 1978, holding that § 476.458, RSMo 1976 Supp., requiring mandatory retirement for magistrate and probate judges at age seventy, is unconstitutional as violative of equal protection and due process. Amend. XIV, U.S.Const., Art. I, §§ 2 and 10, Mo.Const. Since this case involves a construction of the Constitution, we have jurisdiction. Article V, § 3, Mo.Const.

The issue which we must determine is whether the mandatory retirement provisions embodied in § 476.458 relating to respondent-magistrate are constitutional. For reasons hereinafter stated, we hold that the statute is not unconstitutional and does not violate equal protection or due process and reverse the judgment of the trial court.

II.

On January 23, 1978, respondent-Judge Jules M. O’Neil filed his petition for declaratory relief attacking the constitutionality of § 476.458. He alleged that the statute requiring him to retire at age 70 violated both equal protection and due process. In support of these allegations, he contended that (1) mandatory retirement was unreasonable, arbitrary, capricious, inequitable and oppressive and violative of the United States and Missouri Constitutions, and (2) the statute deprived him of his right to pursue his livelihood as a magistrate and of his right to sustain life. He also alleged that the statute violates his civil rights because of “age and age alone”.

The action was brought against the St. Louis County Election Board and the Commission on Retirement, Removal and Discipline. After motions to dismiss filed by both defendants were overruled, a trial was held on April 27, 1978.

At trial seven witnesses testified. Mr. Thomas Wehrle, St. Louis County Counselor testified that Judge O’Neil was “very competent” to be a judge, that he is active both “physically and mentally” and that the Judge was a vigorous and vital man.

Judge O’Neil’s personal physician testified that, although the Judge had diabetes, it was controlled by diet and drugs, and although the Judge had a urinary tract infection in December, 1977, when last examined in April, 1978, the Judge’s condition was “satisfactory and stable”. He expressed his opinion that the Judge’s general health “is quite vigorous” and that he could continue his normal day-by-day activities.

Two practicing attorneys testified. Mr. Daniel V. O’Brien stated that he appeared in the Judge’s court almost on a daily basis and that the Judge’s physical and mental capabilities in discharging his functions as a judge were very good. The Judge worked a full day and maintained a good judicial temperament. He noted no diminution of his capabilities or his energies.

Mr. Robert Ahrens, another practicing attorney expressed the view that the Judge had an exceptionally good judicial temperament and was competent as a magistrate.

Judge O’Neil testified. He stated that he first became a magistrate in the first district in St. Louis Coúnty on September 20, 1963 and has since served continuously in that position. He was born on November 5, 1907 and reached the age of 70 on November 5, 1977. In November, 1977 and for a time thereafter he was off the bench because he had a prostate removed in November, 1977. But that he “felt good”. “I feel better now then I have in the last ten years . .” Judge O’Neil testified that he filed his declaration of candidacy for the office of Magistrate on December 20, 1976 for the 1978 election, and paid the appropriate fee. He stated that he could discharge his duties as a magistrate for the next four years if reelected. He desired to continue to be a judge because he did not believe it was right for him to take a state pension since he felt he was capable of continuing in the position of Magistrate. “ . . .1 want to continue to work.”

The final witness was the chief deputy clerk for the Judge. She testified concerning the great number of cases disposed of by the Judge in 1976 and 1977.

On May 4, 1978, the trial judge below filed its order and opinion. The court ruled that § 476.458 violated the equal protection and due process clauses of the Fourteenth Amendment of the United States Constitution and Art. I, §§ 2 and 10, Mo.Const. In support of its ruling, the court stated that (1) the defendants “presented no evidence to indicate any relationship between the attainment of the age of 70 and a judge’s fitness to preside,” (2) the respondent was physically and mentally competent to perform the duties of a magistrate judge and (3) concluded that Gault v. Garrison, 569 F.2d 993 (7th Cir. 1977) supported the conclusion that the retirement provisions of the statute were unconstitutional, and was “controlling”.

The trial court ordered the Election Board to permit the Judge to file and run for the office in the August primary; the court further prohibited the Commission on Retirement, Removal and Discipline from retiring or compelling the Judge to retire because of age.

III.

On this appeal, appellant and respondent join issue — appellant contending that the statute does not violate equal protection because the statute has several rational bases and does not violate due process because it does not deprive him of a property right or of his ability to sustain life, and inferentially because no procedural safeguards are necessary before retirement. Respondent, Judge, on the other hand contends the opposite and points out that the statute (1) is violative of equal protection, (2) that the statute mandates retirement without procedural safeguards afforded those who have not attained seventy, and in doing so deprives respondent of “property” and his ability to sustain life.

The thrust of respondent’s argument, as expressed at the Bar, is that (1) a classification of magistrate and probate judges at age 70 for purposes of retirement with no rational articulable state interests stated in the statute or based on evidence is unconstitutional, (2) the selection of magistrates and probate judges in § 476.458 for purposes of retirement without requiring some other judges to retire is violative of equal protection and (3) the respondent and the judges in a similar capacity are denied due process because they are not afforded the same procedural safeguards of a hearing prior to retirement as other judges required to retire at an earlier age.

IV.

As stated, the sole question for our determination is the constitutionality of the mandatory retirement statute relating to magistrate and probate judges (not under the non-partisan court plan) as embodied in § 476.458, adopted in 1976. In passing, we note that Judge O’Neil has rendered many years of faithful and competent service to the citizens of this state, and especially to the citizens of St. Louis County. He continues to do so. We are aware that although the passage of time has added years to Judge O’Neil’s age, it has not lessened his legal abilities. We recognize, as did the several witnesses at the hearing that Judge O’Neil is competent both physically and mentally, that his health is generally good, that he is very competent and that he desires to continue to serve the public.

But those factors do not control the issue. The constitutionality of legislation cannot be determined on an individual basis. The facts are that Judge O’Neil became seventy years of age on November 5, 1977, and has served more than twelve years, and will, on December 31, 1978, complete his term.

V.

In the resolution of this issue and under the proper constitutional standard hereafter discussed, we first determine whether the General Assembly has the power to enact a law requiring magistrate and probate judges to retire and whether such legislation is permissible. We must then decide whether the statute is rationally related to the legislative purpose and legitimate state interests and whether it violates equal protection or due process. See Abramson, Compulsory Retirement, The Constitution and The Murgia Case, 42 Mo.L.Rev. 25, 39 (1977).

We first treat the question of whether the General Assembly has the power to enact a law requiring such judges to retire at a specific age. Art. V, § 1, Mo.Const. 1945, vests the judicial power of the state in various courts among which are probate courts and magistrate courts, and Art. V, § 25 of that Constitution prescribed the constitutional qualifications for the judges of those courts. Judges of the supreme and appellate courts must have been citizens of the United States for 15 years and qualified voters of Missouri for 9 years next preceding their selection; they must be at least 30 years of age and are prohibited from holding public office after the age of 75. Certain residency requirements aside, circuit judges were required to be citizens of the United States for 10 years, voters of Missouri for three years preceding their selection, and 30 years of age. Judges of probate and magistrate courts were required to be voters of Missouri and residents of the county. Probate judges had to be 25 and magistrates at least 22 years of age. All judges were required to be lawyers except for certain grandfather provisions. It is noted that that constitution did not authorize any different or additional qualifications to be brought into being by law.

These and other provisions of the judicial article of our constitution in Art. V were amended at the general election of August 4, 1970. The amendment to Art. V, § 1, was not significant, but the amendment to Art. V, § 25, was significant. Art. V, § 25, as amended 1970, continued, as before, to set forth the qualifications for the judges of the courts of this state from the supreme court to magistrate courts. The new section also provided, however, as follows:

“ . . . Judges of probate and magistrate courts shall be qualified voters of this state and residents of the county and have such other qualifications as may be provided by law.” (Emphasis added).

The italicized portion was new in 1970. By this provision, the people authorized the legislature to adopt qualifications for magistrate and probate judges in addition to those set forth in the Constitution. This constitutional authorization is the provision which authorized the General Assembly to adopt the additional qualifications for magistrate and probate judges set forth in § 476.458 which prohibits such judges from serving as magistrate or probate judges beyond the age of 70 years and provided certain limited exceptions thereto. The age 70 retirement provision is an additional qualification provided by law as authorized by Art. V, § 25, Mo.Const., as amended 1970. It should also be noted that a newer judicial article was adopted by the people in August, 1976 which will become effective January 2, 1979. This amendment, inter alia, repealed § 25. The new section dealing with judge qualifications will be Art. V, § 21.

The 1970 amendment therefore recognizes a distinction between various classes of judges and sets forth various qualifications for different classes. The 1970 Amendment clearly authorized the General Assembly to set “other qualifications” for magistrate and probate judges.

We conclude that under the 1970 Amendment to Art. V, the General Assembly has the power to adopt § 476.458 and that such legislation is constitutionally permissible even though it provides for different qualifications for different classes of judges.

VI.

We turn to the issue of whether the statute is violative of equal protection or due process.

In recent years, compulsory retirement systems have come under constitutional attack. Equal protection and due process challenges have been made in a great number of decisions and in a great variety of contexts.

In Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976), the Supreme Court of the United States upheld a Massachusetts compulsory retirement statute relating to a state police officer, which required state police officers to retire at age 50. The Court held (1) that the proper standard of judicial review of the equal protection claim was not “strict scrutiny” but the traditional rational basis test wherein classifications are constitutional if they bear a rational relationship to a permissible state interest. Dandridge v. Williams, 397 U.S. 471, 485-486, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); and (2) that the compulsory retirement provision involved satisfied the rational basis standard.

The standard which we must utilize in the instant case is therefore the rational basis test. Under this standard, the great number of authorities which have examined a compulsory retirement statute in the various professions, have all, save one, upheld the validity of such compulsory retirement statutes. The sole exception is, in some respects, Gault v. Garrison, supra.

In Gault, plaintiff, Julia Gault, on behalf of herself and others filed suit challenging the constitutionality of governmental mandatory retirement requirements relating to teachers, as violative of both equal protection (by discriminating against her on the basis of age — 65) and due process (by creating an irrebuttable presumption and by terminating public employment arbitrarily). The Court of Appeals, Seventh Circuit reversed the sustaining of a motion to dismiss her petition and remanded the cause for further proceedings. The Court distinguished Murgia and held that (1) the classification of a public school teacher based on mandatory retirement at age 65 was viola-tive of equal protection without an eviden-tiary showing that it rationally furthered some articulable state purpose, and (2) absent a showing of a rational state purpose the granting of procedural safeguards to teachers under age 65 prior to termination and a denial of such procedural safeguards to those over 65 was a denial of equal protection. Of course, we are not compelled to follow, nor are we bound by that decision. Kraus v. Board of Education of City of Jennings, 492 S.W.2d 783, 784-785 (Mo.1973).

But in the most recent decision which we have found, Palmer v. Ticcione, 576 F.2d 459 (2nd Cir. 1978), [1978] 16 Empl.Prac.Dec. (CCH) ¶ 8314, the Second Circuit Court of Appeals refused to follow Gault. In Palmer, a teacher, as in Gault, appealed from an order of the District Court dismissing plaintiff’s allegation of age discrimination in violation of equal protection and due process. Unlike Gault she was required to retire at age 70. It was not disputed that she was willing and able to teach. She contended, as the respondent does here, that retirement solely on the basis of age violates her constitutional rights, and that she is entitled to a hearing and procedural safeguards before retirement.

The Second Circuit affirmed the dismissal of her claim. The court declined to follow Gault for two reasons. First, the court, while recognizing there was evidence in the record to support the conclusion in Murgia, but absent in Gault, relied upon numerous prior decisions which have sustained compulsory retirement statutes in various contexts which involve primarily mental skills. Second, the court held that Gault, “too narrowly” conceived the possible rational basis for a compulsory retirement statute. Unrelated to any notion of physical or mental fitness, a state might prescribe mandatory retirement for teachers in order to open up employment opportunities for young teachers or to open up more places for minorities, or to assure predictability and ease in establishing and administering pension plans. “A compulsory retirement system is rationally related to the fulfillment of any or all of these legitimate state objectives.” Palmer, 576 F.2d at 462. Thus the Second Circuit held that the compulsory retirement law is immune from the constitutional attacks of equal protection and due process.

The rationale of Palmer and the result thereof are also found in the numerous decisions throughout the country — all upholding the constitutionality of compulsory retirement laws when challenged on equal protection or due process grounds. Every case, save Gault, which has considered the issues has upheld mandatory retirement statutes.

Mandatory retirement provisions are recognized by private industry, by state governments and by the federal system under recent legislative amendments. Mandatory retirement systems perform beneficial societal functions. The justification most commonly offered for mandatory retirement schemes is that there is a reasonable connection between increased age and declining job capabilities so that mandatory retirement is a convenient method of insuring an effective and productive work force. See Abramson, supra, 42 Mo.L.Rev. at 44.

Under the numerous judicial precedents, and because there are rational bases for the statute, we hold that § 476.458 is not violative of equal protection or due process because (1) compulsory retirement statutes for various public occupations, including judges, have been upheld as constitutionally permissible and (2) section 476.-458 is rationally related to the furtherance of legitimate state interests. Several rational bases related to the furtherance of a legitimate state interest are implied in the statute and are clearly recognizable.

First, § 476.458, “marks a stage” in life at which judges must end their regular, daily judicial duties. Judges serve in a sensitive position. Judges’ decisions affect many aspects of peoples’ lives and property. Judges must be able to adapt to changes in the law and in society. Judges are held to the highest possible standards. See Code of Judicial Conduct, Rule 2.

Our citizens are entitled to a judicial system of the highest caliber and to judges with the highest possible mental and physical qualifications. Mandatory judicial retirement is an attempt by the General Assembly to insure the fitness of the judiciary as a whole and to insure the continued competency of the system. The General Assembly in adopting the statute dealt in probabilities. That is all humans can do. There are certain ages in life, learned from experience, at which there is a lessening in mental, physical abilities. If mandatory retirement is invalid at age 70, then at what age—80, 90, or 100? To paraphrase Holmes,—in life, one must make choices. That is what the General Assembly did. The statute draws a line at a certain age which attempts to uphold the high competency for judicial posts and which fulfills a societal demand for the highest caliber of judges in the system. Cf. Aronstam v. Cashman, 325 A.2d 364. The statute is an attempt to insure that, on the whole, only those judges who have the vigor, health and vitality will carry out the public’s work in administering justice. The function of mandatory retirement is to permit the withdrawal from the bench that group of judges in which disabilities related to aging are most likely to occur. Braithwaite, Removal and Retirement of Judges in Missouri: A Field Study, 1968 Wash.U.L.Q. 378, 397.

Second, the statute which is presumptively valid draws a legitimate line to avoid the tedious and often perplexing decisions to determine which judges after a certain age are physically and mentally qualified and those who are not. A mandatory provision avoids these traumatic and often lengthy hearings.

Third, mandatory retirement increases the opportunity for qualified persons — men and women alike — to share in the judiciary and permits an orderly attrition through retirement. See Townsend v. County of Los Angeles, 122 Cal.Rptr. at 503.

Such a provision not only achieves the maximum in qualified judicial personnel, but equally important widens the opportunities for qualified younger members of the Bar to seek a judicial post. Rephrasing Palmer v. Ticeione, a state might prescribe a mandatory retirement for judges in order to “open up” judicial opportunities for younger lawyers and to bring young persons with fresh ideas and techniques into the system.

Fourth, such a mandatory provision also assures predictability and ease in establishing and administering judge’s pension plans. The General Assembly, having the constitutional power to do so, has established a comprehensive retirement plan for judges based on retirement at age 70. As a corollary, the General Assembly must be able to plan and determine the amount of appropriations necessary to fulfill the statutory benefits provided for the retirement of judges. That is solely the function of the General Assembly.

We remember the difficulties that arose from the absence of a mandatory retirement age for judges. We also recall that there were no provisions for survivors benefits. Judges were, of necessity, forced to serve beyond the years of their physical and mental abilities. The judiciary, as well as others, pointed out these deficiencies to the General Assembly and they were corrected.

Furthermore, we know that age seventy is an age — a time of life — which is recognized by society as being “about” the time when the physical and mental processes weaken among many men and women. That recognition is embodied in statutes, in private retirement systems and in the policy of the Congress. All of this, and more, is embodied in the policy of § 476.458.

In sum, we conclude that compulsory retirement of magistrate and probate judges at age seventy embodied in the statute is rationally related to the fulfillment of several legitimate state objectives and hence the statute does not violate equal protection.

In our view Gault is not, as the trial court held, controlling under the circumstances.

As to the due process argument of respondent, he contends, as we understand it, that there is a presumption that at age seventy, a judge is no longer capable to act as a judge on a daily, full-time basis and that he is not entitled to the same procedural safeguards other judges who have not reached seventy are afforded before they may be required to retire.

The due process argument is similar to the equal protection one; the two are closely intertwined. If mandatory retirement is constitutionally permissible and is not a violation of equal protection then respondent is not deprived of any due process rights. As stated in Palmer, if the statute is sustainable because it is rationally related to a legitimate state purpose, the statute is not vulnerable because it requires retirement based upon a presumption and does not provide for procedural safeguards before retirement.

“ . . . If the statutory classification is sustainable as rationally based, then it should not fall because it might also be labeled a presumption. Moreover the due process claim was before the court in Mcllvaine v. Pennsylvania, . . . and Weisbrod v. Lynn, . . . and this court in Rubino v. Ghezzi, In each case it was rejected.” Palmer v. Ticcione, 576 F.2d at 463.

The due process claim has been before the courts previously and in each case was rejected.

Nor does the statute deprive the respondent judge of “property” or his ability to “sustain life.” A judge does not have a vested interest in public office, nor is the office fundamental property within the meaning of the Constitution. Public officers are created solely to meet the needs of the public and the incumbent has no contractual or vested right to the office. State ex rel. Hall v. Vaughn, 483 S.W.2d 396, 397 (Mo. banc 1972). Decisions of the Supreme Court of the United States conclude there is no right of governmental employment per se. Murgia, 427 U.S. at 313, 96 S.Ct. 2562. There is no constitutional right to be a judge.

It can hardly be said that the statute deprives the respondent of his ability to “sustain life”. This argument is without merit in view of other provisions of law relating to retirement compensation which is sufficient to provide the necessities of life.

VII.

Under all these circumstances, the authorities heretofore relied upon and based upon legitimate state objectives, we hold that § 476.458 is not violative of the equal protection or due process clauses of the Federal or Missouri Constitutions and hence is constitutional.

In reaching this conclusion we are aware of the substantial contributions that pur elderly citizens make to society and “we do not make light of the substantial economic and psychological effects . . . compulsory retirement can have on an individual . . .” Murgia, 96 S.Ct. at 2568. Retirement can well be a time of life of many useful pursuits. In short “age is not a cage” but a time of life when many new things can be accomplished. But in determining the provisions for mandatory retirement embodied in § 476.458, the General Assembly has weighed these personal considerations against the social goals which compulsory retirement furthers. In this instance we will not intrude into the legislative prerogative and strike down a legislative choice. See Nelson v. Miller, 480 P.2d at 472.

We accordingly reverse the judgment of the trial court.

The judgment is reversed.

All concur.

      . “Except as otherwise provided in this section, magistrate judges, probate judges, and probate ex-officio magistrate judges shall retire at the age of seventy years, and may participate, if otherwise eligible, in the retirement plan established by §§ 476.515 to 476.570, except . .

      . Dunn v. Biumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). This more rigid test is applied when reviewing state-created classifications which interfere with a fundamental right or operates to the peculiar disadvantage of a suspect class. Murgia, 96 S.Ct. at 2566.

      . In applying this standard the Court noted that it employs a relatively relaxed standard reflecting an awareness that the drawing of lines is peculiarly a legislative task. Perfection is not necessary or possible. Murgia, 96 S.Ct. at 2567, citing Dandridge v. Williams.

        .Johnson v. Lefkowitz, 566 F.2d 866 (2nd Cir. 1977)—civil servants to retire at 70; Rubino v. Ghezzi, 512 F.2d 431 (2nd Cir. 1975), cert, denied, 423 U.S. 891, 96 S.Ct. 187, 46 L.Ed.2d 122 (1975)—mandatory retirement of state judges at 70, Weisbrod v. Lynn, 383 F.Supp. 933 (D.D. C.1974) affd. 420 U.S. 940, 95 S.Ct. 1319, 43 L.Ed.2d 420 (1975)—federal civil servants.

      . In addition to Johnson v. Lefkowitz, supra, Rubino v. Ghezzi, supra and Weisbrod v. Lynn, supra, see also Aronstam v. Cashman, 132 Vt. 538, 325 A.2d 361 (1974) — mandatory retirement age of 70 for assistant state judges constitutional because it promoted legitimate state interest of imposing highest possible standards for judiciary; Nelson v. Miller, 25 Utah 277, 480 P.2d 467 (1971) — statute providing for mandatory retirement of district judges at age 70 and Supreme Court justices at age 72 constitutional; Boughton v. Price, 70 Idaho 243, 215 P.2d 286 (1950) — statute requiring judges to retire at 70 not unconstitutional; Townsend v. County of Los Angeles, 49 Cal.App.3d 263, 122 Cal.Rptr. 500 (1975) — county public defender required to retire at age 65, not denied equal protection and collecting many decisions; Armstrong v. Howell, 371 F.Supp. 48 (D.Neb.1974) —hospital employee retire at 65; Mcllvaine v. Pennsylvania, 415 U.S. 986, 94 S.Ct. 1583, 39 L.Ed.2d 884 (1974) see infra.

      It is to be noted that Congress recently considered the issue of compulsory retirement and has amended the Age Discrimination in Employment Act of 1967. P.L. No. 95-256, 92 Stat. 189 — requiring retirement, with certain exceptions, at age 70.

      . The pension plan is one-half of compensation. Section 476.530. The compensation of a magistrate in St. Louis County is $33,000 per an-num. Section 482.150, RSMo 1977 Supp.

      . The fact that the statute does not apply to the entire judiciary does not make the statute vio-lative of equal protection. See Nelson v. Miller, 480 P.2d at 476 — Supreme Court Judges retire at 72 and district judges at 70, and see discussion, supra, relative to the permissible power of the General Assembly.

      . McIlvaine v. Pennsylvania, 415 U.S. 986, 94 S.Ct. 1583, 39 L.Ed.2d 884 (1974) dismissing for want of substantial federal question, McIlvaine v. Pennsylvania State Police, 454 Pa. 129, 309 A.2d 801 (1973) aff’g. McIlvanie (sic) v. Pennsylvania State Police, 6 Pa.Cmwlth. 505, 296 A.2d 630 (1972) holding retirement system valid as against due process claim; Weisbrod v. Lynn, supra, holding that Federal Employee Mandatory Retirement Law does not violate due process. See Discussion in Weisbrod, 383 F.Supp. at 936-937; see also comments of Pell, J., dissenting in Gault, 569 F.2d at 1000 — “... no merit in this attack.”


source: Caselaw Access Project

author: FINCH, Judge.

license: Public Domain

text:
    HOME BUILDING CORPORATION, Plaintiff and Cross-Appellant, v. The VENTURA CORPORATION, Michael J. Mason and Susan Mason, Statutory Trustees, Defendants, and The Housing Authority of the City of Nevada, Missouri, Defendant and Cross-Appellant.
    No. 59980.
    Supreme Court of Missouri, En Banc.
    July 24, 1978.

      Gerald D. McBeth, Ewing, Ewing, Carter, McBeth & Smith, Nevada, for plaintiff and cross-appellant.
    Donald G. Stubbs, Stubbs & Mann, P. C., Kansas City, for defendant and cross-appellant.
    Ben R. Swank, Jr., Slagle & Bernard, Kansas City, for amicus curiae.
   FINCH, Judge.

This is an action wherein Home Building Corporation (HBC) sought a judgment for the balance due on modular housing units furnished to The Ventura Corporation (Ventura), plus a mechanic’s lien on the real property on which the housing units were erected. The trial court entered judgment against the statutory trustees of Ventura for $72,476.46 and impressed a mechanic’s lien on the property for that sum. However, on the basis that the property had been sold by Ventura to The Housing Authority of the City of Nevada, Missouri (Authority), a municipal corporation created pursuant to Chapter 99, and that § 99.200 precludes enforcement of such liens against property owned by housing authorities, the court ordered the lien stayed so long as the real estate was owned by Authority. Both HBC and Authority appealed. We have jurisdiction because one of the defenses asserted by Authority is that Chapter 429, insofar as it deals with establishment of mechanic’s liens, is unconstitutional because violative of the due process clauses of the fourteenth amendment of the United States Constitution and Article I, § 10, of the Missouri Constitution.

Authority was created by action of the Nevada City Council to be “a municipal corporation exercising public and essential governmental functions” with the overall purpose of providing safe and sanitary housing for persons of low income. In pursuance of that objective, it contracted on April 27, 1973, with Ventura to purchase from it a completed housing project on a “turnkey” basis. Ventura agreed to construct 70 dwelling units (as described in an exhibit to the contract) on unimproved real estate which it owned and to convey the property by general warranty deed to Authority following satisfactory completion of the project.

Thereafter, on September 27, 1973, Ven-tura entered into a contract whereby HBC was to provide modular housing units for the housing project. HBC substantially performed its obligations under the contract, completing its work thereon on March 29, 1974. A dispute arose over certain alleged construction defects and $72,476.46 of the contract price was withheld. On July 31, 1974, HBC filed its mechanic’s lien statement and on January 21, 1975, filed this action to foreclose the lien.

At the outset we must decide two threshold questions involving HBC’s right to maintain this action. The first question involves the dual issues of whether HBC was required to serve notice of its intention to file a lien statement and whether its statement was timely filed. The answers to both of these issues depend on whether HBC was an original contractor or a subcontractor within the meaning of Chapter 429. If, as Authority contends, HBC was a subcontractor, it was required to serve notice of its intention to file a lien statement in accordance with § 429.100 and it was required to file its lien statement within four months after the indebtedness accrued as provided in § 429.080. HBC served no notice on either Ventura or Authority and it filed its lien statement four months and two days after the date on which the indebtedness accrued. If, however, HBC was an original contractor, no notice was required and HBC had six months in which to file its lien statement.

Authority argues that the best evidence as to the relationship of the parties and the status of HBC is that the contract between Ventura and HBC referred to them as contractor and subcontractor respectively. That characterization is not necessarily determinative. Rather, we must look to the language of Chapter 429 and determine whether under its terms HBC was an original contractor. J. H. Magill Lumber Co. v. Carter, 17 S.W.2d 581 (Mo.App.1929). The question of what Chapter 429 means when it speaks of an original contractor was stated in Vasquez v. Village Center, Inc., 362 S.W.2d 588, 593 (Mo.1962), when the court said: “One who makes a contract to perform labor or furnish materials with the then owner of the property is an original contractor.” In other words it is a person or firm which has contracted directly with the owner concerning what such contractor is to do.

HBC contracted directly with Ven-tura. Since Ventura was the record owner of the property and was exercising dominion over the the real estate at that time, this would appear to cause HBC to be an original contractor. However, Authority argues that when Ventura contracted with HBC it was not the owner of the property because it had contracted to sell to Authority, thereby making Authority the equitable owner. It follows under Vasquez, argues Authority, that HBC was not an original contractor. We disagree. It is true that Authority had become the equitable owner and it also is true that in Vasquez the court held that an equitable owner, exercising the rights of a proprietor in the land at the time a contract is made, may be the owner thereof for purposes of the mechanic’s lien statute. It does not automatically follow, in the factual situation presented, that Ven-tura was not the owner of the property in question. Ventura, not Authority, was building the housing units. It was exercising dominion over the property when HBC contracted to furnish the modular housing units. Therefore, HBC was an original contractor and its lien statement, filed four months and two days after completion of its work, was timely filed. J. H. Magill Lumber Co. v. Carter, supra It was not required to serve notice of an intention to file such a statement.

The second threshold issue involves the question of whether HBC commenced this action within six months after filing its lien statement as required by § 429.170. Authority recognizes that the suit actually was filed within the six month deadline but it claims that HBC did not commence the action as required by § 429.170 in that it did not join all indispensable parties within the six months. It points out that the corporate charter of Ventura, named and served as a party, had been forfeited on January 1, 1975, by the Secretary of State and that HBC should have named the statutory trustees of Ventura as necessary and proper parties defendant under § 351.525. Not having done so, says Authority, HBC did not comply with § 429.170 and the suit is barred.

The records in the office of the Secretary of State, if examined, would have disclosed the forfeiture of Ventura’s charter. HBC was unaware of that development and named Ventura as a party defendant. Service was had on Ventura’s registered agent. Thereafter, Ventura filed an answer in which it admitted its corporate existence. The pleadings of Authority did likewise. It was not until sometime later (September 1976) that HBC learned that Ventura’s charter had been forfeited. It so advised the court and sought and was granted leave to amend and name the statutory trustees of Ventura as parties defendant. Thereafter, Authority filed a pleading denying, for the first time, the corporate existence of Ventura.

This issue is governed by Rule 55.33(c), V.A.M.R., which became effective September 1, 1973. It governs relation back of amendments changing the party against whom a claim is asserted. Three requirements for such relation back are stated.

The first requirement is that the claim or defense asserted against the new party must arise out of the conduct, transaction or occurrence set forth in the original pleading. Clearly, this requirement was satisfied. The claim against the statutory trustees is the same one asserted in the original petition against Ventura and is based on the transactions set forth in the original pleading.

The second requirement is that the party to be brought in by amendment must have received such notice of the institution of the action within the period provided by law for commencing the action against him that he will not be prejudiced in maintaining his defense on the merits. The statutory trustees in this instance were the officers of Ventura when its charter was forfeited. While there was no direct evidence offered at trial to show that they had notice of the suit when filed in January 1975, the record supports an inference that they did. It shows that the petition and summons were served on Ventura’s registered agent and that thereafter a timely answer was filed by Ventura, admitting, among other things, its corporate existence. The filing of this answer was an act attributable to the officers of Ventura. There is no evidence to indicate that such inference is not reasonable or proper.

The third requirement under Rule 55.-33(c) is that the party to be joined knew or should have known that, but for a mistake by HBC concerning the identity of the proper party, the action would have been brought against him. We find this requirement to be satisfied. The statutory trustees added as parties defendant were the officers and directors of the corporation, designated by statute to be successors in interest to the corporation. This would indicate that they should have known that, absent HBC’s mistake in overlooking Ven-tura’s status as a corporation whose charter had been forfeited, they would have been named in their capacity as statutory trustees as parties defendant.

It is significant that Authority has not contended in its briefs or in oral argument that Rule 55.33(c) does not govern. We hold that it does govern and that HBC commenced its action within six months as required by § 429.170.

Authority’s principal contention is that the trial court erred in establishing a mechanic’s lien in favor of HBC for the reason that Chapter 429, insofar as it deals with establishment of mechanic’s liens, violates the due process clauses of the fourteenth amendment of the United States Constitution and Article I, § 10, of the Missouri Constitution and, hence, is unconstitutional. This position is premised on an asserted absence of procedural due process by reason of the fact that the statute did not require notice and a hearing to test the validity of the asserted claim as conditions precedent to the filing of HBC’s lien statement.

This challenge to the constitutionality of Chapter 429 is based primarily on four decisions of the Supreme Court of the United States which addressed the question of whether certain statutory prejudgment creditor remedies were violative of the due process clause of the fourteenth amendment. Those were Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), which involved garnishment of wages, Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), which involved replevin of personalty, Mitchell v. W. T. Grant, 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974), which involved sequestration of personalty under a vendor’s lien and North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975), which involved garnishment of a bank account. In Sniadach, Fuentes and North Georgia, the court held the state statute involved to be unconstitutional. The statute in Mitchell was upheld on the basis that it met the procedural due process requirements of the fourteenth amendment. The teaching of those cases collectively is that when as a result of state action an owner of property is deprived of a significant property interest without notice or an opportunity for a hearing as to probable validity of the asserted right (either before or immediately after the taking), procedural due process required by the fourteenth amendment is lacking.

HBC makes no contention in its brief that the establishment of the mechanic’s lien which it asserts was not the result of state action. It argues only that there was no deprivation of a significant property interest and that Chapter 429 provides procedural due process. We will limit our consideration to those questions.

In Sniadach, Fuentes and North Georgia, the three cases in which the Supreme Court held that state statutes were unconstitutional on the basis that there was a deprivation of a significant property interest without minimum procedural due process being afforded, the court dealt with instances in which the owner of property was deprived of actual possession and enjoyment of the property involved. For example, in Snia-dach wages were garnished and, as a result, there was complete deprivation of use of those funds by the owner until the case was decided on the merits. In Fuentes property was seized in a replevin action and in North Georgia a corporate bank account was garnished. Again, there was actual deprivation of possession and use of the property seized.

In the instant case nothing comparable occurred. Pursuant to the policy decision by the Missouri General Assembly in enacting Chapter 429 to grant a meaningful method of securing payment to those supplying labor, work and materials for improvements on real estate (the rational basis for which policy is obvious), HBC merely acquired a mechanic’s lien to the extent that it furnished work, labor and materials for housing constructed on Ventura’s property. Section 429.010. That lien, pursuant to the “first spade rule,” dated from the visible commencement of work. See generally, Comment, 42 Mo.L.Rev. 53, 55-57 (1977).

When HBC had completed its work, it filed its verified, written statement of its account on the project with the circuit clerk. This statement did not create a new lien. It simply reduced to written, verified form the details of the statement of charges and credits making up the account for which the lien, established by § 429.010, is claimed. Its filing continued the lien for a reasonable period to permit filing of suit if the account was not settled as a result of the filing of the detailed statement. HBC thereafter filed suit to adjudicate and enforce the lien within six months as required by § 429.170.

Procedural due process requirements, such as those required in Sniadach, Fuentes and North Georgia, attach only when state action gives rise to a deprivation of a significant property interest. Such a deprivation has not occurred in this case. Neither the accrual of a lien in favor of HBC under § 429.010 or the filing of the verified, written details of the entire account pursuant to § 429.080 or the commencement of suit according to the timetable established by § 429.170 divested the owner of possession, use or enjoyment of its property on which the housing was constructed. The owner of the real estate on which HBC sought to establish and enforce a mechanic’s lien retained possession and use of the property. As a matter of fact, it concluded a sale of the property to Authority after the lien statement was recorded.

It may well be, as Authority argues, that the existence of the lien created by § 429.-010 and preserved by actions taken pursuant to §§ 429.080 and 429.170 would have an economic effect in that one dealing with the owner of the property would demand protection against an eventual money claim if the lien is adjudicated to be valid and enforceable, but that does not deprive the owner of a significant property interest. The possession and use of the property is retained and the owner may sell, lease or encumber. The situation is comparable to several others wherein a pending suit has some economic impact on an owner but does not deprive it of a significant property interest. Examples include a suit to quiet title (including suits to establish title by adverse possession) or to establish an easement or a right-of-way of necessity or to settle a disputed boundary. It is comparable to the filing of a lis pendens notice. Such suits are instituted and maintained without the requirement of a hearing before filing to test the validity of the asserted claim.

The record in this case supports the foregoing conclusion that Chapter 429 does not result in property owners being deprived of significant property interests. There was no evidence that Ventura or its statutory trustees as successors were deprived of any significant property interests. As a matter of fact, the evidence shows that Ventura’s sale of the property to Authority was consummated as scheduled. The existence of the lien claims of HBC did not prevent a sale of the property. Nor has Authority offered any evidence to show that it, as equitable owner or as successor owner, has suffered any deprivation of a significant property interest. Documents introduced show that in the closing of its purchase from Ventura, Authority received an irrevocable letter of credit in the amount of 7½% of the purchase price to provide protection against mechanic’s lien claims. It also received a title insurance policy. There has been no proof or even any claim that these will not provide complete protection of Authority if HBC’s mechanic’s lien claim in the amount adjudicated to be due is not paid by Ventura.

The result we reach on this issue is in accord with that reached in most of the reported cases which have dealt with this question. The only decision of the United States Supreme Court as to constitutionality of a mechanic’s lien law under the due process clause of the fourteenth amendment is its summary affirmance of a decision of a three judge court in the U. S. District Court of Arizona in Spielman-Fond, Inc. v. Hansons, Inc., 379 F.Supp. 997 (D.Ariz.1973), aff,d, 417 U.S. 901, 94 S.Ct. 2596, 41 L.Ed.2d 208 (1974). In that case, involving a lien claimed for labor and materials furnished for a mobile home park development, the district court upheld Arizona’s mechanic’s lien statute on the basis that there had been no deprivation of a significant property interest. The claimed deprivation was the same asserted in this case, namely, that the owner was deprived of the ability to alienate the property fréely. The court held that the mechanic’s lien did nothing more than to impinge on economic interests of the property owner. It did not take away either possession or use of the property pending final disposition of the case adjudicating the asserted lien and rights thereunder.

Subsequent decisions by various federal courts have followed Spielman-Fond and have upheld state mechanic’s lien statutes on the basis that impairment of property rights by such statutes is insignificant or de minimus. These cases include Ruocco v. Brinker, 380 F.Supp. 432 (S.D.Fla.1974); In re Thomas A. Cary, Inc., 412 F.Supp. 667 (E.D.Va.1976); and B & P Development v. Walker, 420 F.Supp. 704 (W.D.Pa.1976). See also Cook v. Carlson, 364 F.Supp. 24 (S.D.S.D.1973), decided before Spielman-Fond. These cases, it should be noted, all involved claims that the mechanic’s lien statutes deprived owners of property of significant property interests without providing procedural due process. In each instance the mechanic’s lien statute was upheld.

Several state supreme courts also have upheld the constitutionality of mechanic’s lien statutes against similar attacks. These cases include Tucker Door & Trim Corp. v. 15th Street Co., 235 Ga. 727, 221 S.E.2d 433 (1975); Connolly Development, Inc. v. Supe rior Court of Merced County, 17 Cal.3d 803, 132 Cal.Rptr. 477, 553 P.2d 637 (1976); and Silverman v. Gossett, 553 S.W.2d 581 (Tenn.1977).

Two cases cited by Authority have held state mechanic’s lien statutes unconstitutional under the due process clauses. These are Roundhouse Construction Corp. v. Telesco Masons Supplies, 168 Conn. 371, 362 A.2d 778, vacated and remanded, 423 U.S. 809, 96 S.Ct. 20, 46 L.Ed.2d 29 (1975), reaff’d on both state and federal grounds, 170 Conn. 155, 365 A.2d 393, cert, denied, 429 U.S. 889, 97 S.Ct. 246, 50 L.Ed.2d 172 (1976), and Barry Properties, Inc. v. Fick Bros. Roofing Co., 277 Md. 15, 353 A.2d 222 (1976). We do not find these two cases persuasive. They impose a very strict limitation on the reasonable efforts of a state to protect those who supply labor and materials to make improvements to real estate. Such results, in our judgment, are not dictated by the decisions in Sniadach, Fuentes, Mitchell and North Georgia.

We hold that Chapter 429 does not violate the due process clauses of either the fourteenth amendment to the United States Constitution or Article I, § 10, of the Missouri Constitution.

Authority next contends that even if Chapter 429 is constitutional, it was error for the trial court to establish a mechanic’s lien against the tract on which the housing units were erected because the declared public policy of this state precludes the establishment of mechanic’s liens on municipally owned property. It cites and relies on Union Reddi-Mix Co. v. Specialty Concrete Contractor, 476 S.W.2d 160 (Mo.App.1972), which held that a mechanic’s lien may not be imposed on municipally owned water works. It also cites Hertel Electric Co. v. Gabriel, 292 S.W.2d 95 (Mo.App.1956), for the proposition that by its contract to purchase it became the equitable owner for mechanic’s lien purposes.

Assuming, for purposes of this appeal, but without deciding, that municipally owned property devoted to use as public housing may not be subjected to a mechanic’s lien, the first question to be resolved is whether this property was municipally owned property at the time the lien attached. We conclude that it was not. As previously noted, Authority became the equitable owner when it contracted to buy the tract and to receive a deed thereto after the housing units had been erected. However, Ventura retained possession of the property and under its contract with Authority was to erect housing units thereon. It retained control over the tract until the units were completed and a deed executed. It continued to be an owner which had the authority to contract, for erection of improvements which resulted in the statutory lien which HBC claims under the provisions of Chapter 429. This was not municipal property at this point. Hertel Electric does not dictate a contrary conclusion. It held merely that the purchaser of land under contract holds a sufficient ownership interest to enable it to impress a mechanic’s lien on such equitable interest. However, Authority exercised no such dominion over the tract in this case. The fact that an equitable owner may under appropriate circumstances be an owner under a mechanic’s lien law does not preclude a vendor from being an owner which may create a lien. Under the facts in this ease, the tract was not municipally owned land when HBC’s lien arose and Union Red-di-Mix is not applicable and does not govern. Ventura could and did by its actions cause a lien to arise in favor of HBC.

In further support of its contention that it was equitable owner and that this prevented HBC from establishing a lien on its property, Authority cites State ex rel. City of St. Louis v. Baumann, 348 Mo. 164, 153 S.W.2d 31 (banc 1941) and State ex rel. Smith v. City of Springfield, 375 S.W.2d 84 (Mo. banc 1964). Those cases held that acquisition of equitable title as a result of a contract of purchase by a governmental agency is sufficient to cause property to be exempt from liability for taxes assessed. We find those cases inapplicable. Their rationale is that the public policy of the state is not to tax property held by another political subdivision of the state and that such policy would be violated if, when a political subdivision acquires equitable title to property, it continues to be subject to taxes in favor of another political subdivision. Such reasoning can have no application when the issue, as here, involves a question of priority as between a private lienholder and a governmental purchaser of the property to which that lien is applicable.

The second question to be answered is whether acquisition by Authority of a tract on which a mechanic’s lien existed had the effect of destroying that lien because the property was now municipally owned. Apparently, this question has not been decided by a Missouri court but it has been considered in other jurisdictions. In Crane Creek Irrigation District v. Portland Wood Pipe Co., 231 F. 113 (9th Cir. 1916), a power company owned certain water rights, reservoir sites and rights-of-way upon which some construction work had been performed. It contracted with two irrigation districts to complete an irrigation system according to agreed upon plans and specifications, and after completion to execute conveyances to the districts. A subcontractor on said project filed and perfected a mechanic’s lien. The irrigation districts, to which the property was conveyed, sought to avoid enforcement of the lien, contending that they were public corporations and that their property could not be subject to mechanic’s liens. The court upheld the lien, saying at 116:

“While on grounds of public policy the property of municipal corporations held for public purposes may be exempt from the operation of the general lien laws of the state, yet such municipalities may not enter into contracts with third persons for the construction of plants or other improvements on the property of such third persons to be thereafter conveyed to the municipality, and then claim the statutory exemption from liens for labor performed upon or materials used in the construction of the contemplated improvements.”

The court held that the lien attached before the irrigation districts acquired the property and that the liens were not affected or defeated by the subsequent conveyance to the districts. Other cases which support the rule announced in Crane Creek are City of Salem v. Lane & Bodley Co., 189 Ill. 593, 60 N.E. 37 (1901); Findorff v. Fuller & Johnson Mfg. Co., 212 Wis. 365, 248 N.W. 766 (1933); and Meads v. Dial Finance Go., 56 Ala.App. 84, 319 So.2d 281 (Ct.App.1975).

The reasoning in the foregoing cases is sound. It would be unjust to permit a municipality, by purchasing property which is subject to claims for mechanic’s lien rights, to defeat those liens simply because the property has been acquired for municipal purposes. If a city condemns land which is subject to the lien of a deed of trust, it does not thereby destroy the rights of the lienholder in such a way as to deny it the benefits of its lien. Neither should a municipal body be entitled by purchase to destroy a mechanic’s lien and deprive the holder thereof of the protection it was intended to afford. Public policy does not so require. This is demonstrated by the public policy expressed in § 107.170 which requires that when a contract is let for public works for the state or any county, city, etc., a bond to guarantee payment of materials, labor, etc., furnished or performed on such project shall be required. In this instance the municipal agency did not take title to the land and contract itself for erection of the housing. If it had, a bond would have been required. Instead, it contracted to purchase a completed housing project. Under such circumstances it received title thereto subject to existing valid mechanic’s liens.

We note that the parties are in agreement that the trial court inadvertently failed to deduct an agreed upon credit of $2,255.88 from the $72,476.46 for which judgment was entered. The amount for which judgment is entered should be reduced by the amount of that credit. As the foregoing contentions of Authority have been rejected, the judgment imposing a lien on its property in the amount of $70,220.58 is affirmed.

HBC appeals from that portion of the judgment whereby the trial court ordered HBC’s lien stayed so long as the real estate to which it is applicable is owned by Authority. Apparently, it reached the conclusion to stay execution on the basis of § 99.200 which provides that real property of a housing authority is exempt from levy and sale by virtue of an execution and that a judgment against an authority shall not be a lien on its real estate. The section further provides, however, that it does not apply to or limit the right of obligees to foreclose or otherwise enforce any mortgage of the Authority. In our view, this statute is not intended to apply to a situation such as we now consider wherein the holder of a lien against real estate, applicable thereto when the property was acquired by the city, seeks to foreclose that lien. Instead, it would appear to be designed to prevent sale under execution to satisfy debts of or claims asserted against the Authority. What HBC seeks to do in this case is to enforce a lien which is comparable to the lien of a mortgage against the property. If Authority had purchased property on which there was an existing deed of trust, it would not be entitled to have enforcement of the lien thereof stayed. Likewise, it is not entitled to a stay of enforcement of HBC’s mechanic’s lien. The trial court erred in ordering the stay and HBC’s appeal from that order is sustained.

The judgment, as modified herein, is affirmed.

MORGAN, C. J., and BARDGETT, DON-NELLY, RENDLEN and SEILER, JJ., concur.

SIMEONE, J., not participating because not a member of the court when cause was submitted.

      . All statutory references are to RSMo 1969 unless otherwise indicated.

      . See generally, Annot., 50 A.L.R.3d 944 (1973).

      . This was filed four months and two days after the last work done by HBC, which obviously was within six months after the indebtedness accrued, as required by § 429.080. Under that section original contractors must file this lien statement within six months, journeymen and laborers must file it within sixty days, and all other persons claiming a lien must file within four months.

      . This section also provides that any such action shall be “prosecuted without unnecessary delay to final judgment.”

      . The mechanic’s lien statutes involved in these federal and state decisions differ in some details from each other and from the Missouri statutes. However, those differences are not significant and do not dictate a different result in this case.
      The Missouri statute, in our view, contains provisions which protect the rights of the property owner as well as those of lien claimants. It is designed to secure expeditious resolution of lien claims. As previously noted, the lien statements must be filed promptly after the claimant completes work. Section 429.080. Journeymen and day laborers must file their lien claim within 60 days, original contractors must file within six months and all others (subcontractors, material suppliers who do not deal directly with the owner, etc.) must file within four months. If the claimant has not dealt directly with the owner, a noti"e of intention to file a lien statement must be served on the owner at least ten days before the lien is filed. The claims must be verified and provide details.
      Suit to adjudicate and enforce any lien must be filed within six months of the date when the lien statement is filed, § 429.170, and is to be prosecuted without unnecessary delay. If there is more than one lien claim, an equitable action may be brought so as to adjudicate all such claims in a single action. Section 429.270. Such suit may be instituted by any lien claimant, by the owner or a lessee or by a mortgagee or holder of any other encumbrance.


author: PINCH, Judge.

text:
    WESTINGHOUSE ELECTRIC COMPANY v. VANN REALTY CO. et al. REEVES-WIEDEMAN CO. et al. v. APPLEWOOD AT THE COVES CORPORATION et al. IOWA SECURITIES COMPANY, now Banco Mortgage Company, Appellant, v. TRUOG NICHOLS, INC., Respondent.
    No. 59858.
    Supreme Court of Missouri, En Banc.
    July 24, 1978.

      Lawrence D. Blume, Milton C. Clarke, Kansas City, for appellant.

      James P. Jouras, Tucker, Chamo, Willens, Jouras & Tucker, Kansas City, for respondent.
   PINCH, Judge.

On May 21,1973, Applewood at the Coves Corporation (Applewood) purchased land on which to construct multi-unit apartment buildings. Concurrently, it executed a first deed of trust to a trustee for a firm later known as Banco Mortgage Company (Ban-co) to secure a loan evidenced by a note for $2,150,000. $177,000 of the amount represented by the note was to be and, in fact, was used to purchase the land. The remainder of the loan was to be used for construction of the apartment buildings. This deed of trust was recorded May 22, 1973.

On May 30, 1973, Truog Nichols, Inc. (Truog) entered into a contract with the general contractor on the job, Vann Realty Company (Vann), to furnish and install heating and air conditioning units in the apartments. It commenced work and from time to time received payments totaling $121,254.10 against its total contract price plus extras of $134,682.10. The work was completed but Applewood experienced financial difficulties and a balance of $13,428 due Truog was not paid. On February 22, 1975, Truog filed notice of intention to file a mechanic’s lien therefor and on March 10, 1975, its lien statement was filed.

Subsequently, this equitable mechanic’s lien action was instituted pursuant to § 429.270 to determine rights as between mechanic’s lien claimants, holders of other liens and the leasehold owners. Truog, named as one of the defendants, cross-claimed against Vann to recover the balance allegedly due. It also sought to establish a mechanic’s lien in the amount of the judgment and an adjudication that the lien enjoyed priority over the deed of trust given by Applewood to Banco.

The trial court entered judgment for Truog against Vann for $13,428, established a mechanic’s lien therefor on the land and improvements and adjudged the lien prior to the deed of trust held by Banco. Only Banco appealed. We have jurisdiction because one of the defenses asserted by Banco involves the question of whether §§ 429.050 and 429.060, which provide for the priority granted to Truog’s lien, are unconstitutional as violative of the due process clauses of the fourteenth amendment of the United States Constitution and Article I, § 10, of the Missouri Constitution.

The threshold question presented is whether Truog filed its lien statement within four months after the indebtedness accrued as required of subcontractors by § 429.080. Whether it did depends on whether Truog in performing its contract did its last work on the project within four months of the date on which the lien statement was filed.

Truog offered evidence that after the air conditioning units were installed and after they were hooked up by the electrical contractor, it was necessary to charge the units with freon and perform a procedure referred to as “check, test and start” and that the air conditioning system could not be considered operational until these things were done. There was evidence that the last “check, test and start” work by Truog was done on November 22, 1974, which was within 4 months of the time Truog filed its lien claim. Banco offered evidence which would have supported a finding that Truog’s installation work was completed by sometime in September 1974, more than four months before the lien statement was filed, and contends that the “check, test and start” work performed after that time was either non-lienable work because not required by the contract or, if required, de minimus and insufficient to extend the filing date.

The trial court, by its decree, found the issues in favor of Truog, entering a judgment against Vann for $13,428 and holding that Truog was entitled to a mechanic’s lien for said sum against the real estate and improvements thereon. The court was not requested to make and did not make findings of fact and conclusions of law. However, it is presumed to have made findings in accordance with the decree it entered. Rule 73.01(1)(b), V.A.M.R.; Collins v. Bowyer, 524 S.W.2d 190 (Mo.App.1975). That necessarily includes a finding that the “check, test and start” work was necessary to completion of the contract and that the lien statement was filed within the time required by § 429.080. Under the rule announced in Murphy v. Carrón, 536 S.W.2d 30 (Mo.banc 1976), we do not disturb that finding, as to timeliness of filing because there is substantial evidence to support it and it is not against the weight of the evidence. It does not erroneously apply the law.

The only Missouri case cited by Banco to support its contention that the court erred in finding the lien statement was timely filed is Floreth v. McReynolds, 205 Mo.App. 143, 244 S.W. 995 (1920). That case clearly is distinguishable because the system installed by the contractor therein was fully operational a year before he returned to the job to charge the batteries, hook up a drain pipe and instruct the owner on operation of the system. Likewise, in the out-of-state cases cited by Banco, the work relied on to extend the period for filing a lien statement consisted of adjusting or servicing a unit already fully operational. Those cases do not apply to the situation in this case wherein the work relied upon to extend the time for filing a lien claim was necessary to complete the job and make the system operational. We overrule Banco’s claim that Truog’s lien statement was not filed within the time permitted by § 429.080.

Banco’s principal contention is that the trial court erred in adjudging Truog’s mechanic’s lien superior to the deed of trust held by Banco for the reason that §§ 429.-050 and 429.060 which provide for such priority are unconstitutional as violative of the due process clauses of Article I, § 10 of the Missouri Constitution and of the fourteenth amendment of the United States Constitution. This contention is based on the proposition that Banco’s property rights represented by its prior recorded note and deed of trust were diminished and adversely affected without adequate notice or an opportunity to be heard in a timely and meaningful manner.

In Home Building Corporation v. The Ventura Corporation, 568 S.W.2d 769, decided concurrently, we dealt with this same contention except that in Home Building it was claimed that all of Chapter 429 pertaining to mechanic’s liens is unconstitutional. We rejected that contention and held Chapter 429 constitutional. For the same reasons expressed therein, we reject Banco’s claim that §§ 429.050 and 429.060 are unconstitutional.

Banco next asserts that by executing a lien waiver for all sums due for services rendered and materials furnished prior to August 8, 1974, Truog expressly waived its lien rights except for services rendered and materials furnished thereafter in the amount of $3,928. This contention relies on language stamped immediately above Truog’s endorsement on the back of a check from Vann to Truog dated August 8, 1974. That endorsement was as follows:

“Endorsement hereon constitutes satisfaction and release of all mechanic’s lien rights for services rendered and materials furnished prior to the date hereof.”

We disallow this contention. Waiver is an affirmative defense which must be pleaded. Rule 55.08, V.A.M.R. Banco’s pleadings did not rely on or even mention waiver. The defense apparently was raised for the first time in a post-trial brief. Since the defense was not pleaded, it has not been preserved for our review. Accordingly, we do not even reach the alternative contentions by Truog that the evidence was insufficient to support a claim of waiver.

Finally, Banco asserts that the trial court erred in adjudging that Troug’s lien was prior to and superior to the purchase money portion of its deed of trust. We find merit in this contention.

Mechanic’s liens do not take precedence over a purchase money deed of trust which secures repayment of funds used to purchase land upon which the improvements giving rise to the lien claims are erected. Joplin Cement Co. v. Greene County Bldg. & Loan Ass’n, 228 Mo.App. 883, 74 S.W.2d 250 (1934); Comment, 42 Mo.L.Rev. 53, 66-69 (1977). Truog concedes that $177,000 of the Banco deed of trust was intended to be used for the purpose of purchasing the tract on which the apartments were to be built and that, in fact, it was so used. Therefore, to the extent of $177,000 the Banco deed of trust constituted a purchase money mortgage which is entitled to priority over Truog’s lien.

Truog seeks to avoid this normal purchase money mortgage priority on the basis that Banco waived any priority its deed of trust might have had. We find no testimony to support a finding of waiver. There was no testimony to show involvement of Banco in the project other than as a lender of funds. Truog claims that the building loan agreement which governed disbursement of funds would support its position, but no effort to introduce that agreement into evidence was made. Truog relies solely on statements in the note and deed of trust. They are insufficient to create a waiver or to subordinate Banco’s purchase money mortgage to Truog’s mechanic’s lien. We hold that in this case there was not evidence to support a finding of waiver. See Comment, 42 Mo.L.Rev. 53, 73-74 (1977). Therefore, the trial court erred in subordinating the purchase money portion of the deed of trust ($177,000) to Truog’s mechanic’s lien.

The judgment is reversed and the cause remanded with directions to enter judgment in accordance with the views herein expressed.

MORGAN, C. J., and BARDGETT, DON-NELLY, RENDLEN, and SEILER, JJ., concur.

SIMEONE, J., not participating because not a member of the court when cause was submitted.

      . All statutory references are to RSMo 1969 unless otherwise indicated. Where, as here, there is more than one lien claimant, an equitable action to adjudicate all claims in a single action may be brought.

      . Banco has even less basis for claiming deprivation of a significant property interest than did Authority in Home Building. It is merely another lienholder, not the owner of the property. As such, Banco’s interest has remained intact from the time of recording. To the extent subordination of this interest to Truog’s lien may be said to deprive Banco of a significant property interest, the deed of trust was subordinated only after a full trial on the merits of the claim and not when the lien was filed. Only one reported case involving a lienholder as the party challenging a mechanic’s lien statute has been cited. In that case, Bankers Trust Co. v. El Paso Pre-Cast Co., 560 P.2d 457 (Colo. 1977), the court held that the mechanic’s lien law did not deprive said lienholder of a significant property interest when the lien was filed.