Duitman v. Liebelt
| Decision Date | 30 October 1962 |
| Citation | 117 N.W.2d 672,17 Wis.2d 543 |
| Parties | Jerold DUITMAN, d/b/a Duitman Plumbing & Heating, Appellant, v. Gust M. LIEBELT et al., Respondents. |
| Court | Wisconsin Supreme Court |
Ervin A. Weinke, Fond du Lac, for appellant.
Crowns, Crowns, Merklein & Midthun, Wisconsin Rapids, for respondents.
The crucial question on this appeal is whether plaintiff Duitman was a principal contractor or a subcontractor at the time he furnished the materials and performed the labor which are embraced in his claim for mechanic's lien. If Duitman supplied labor and materials while a subcontractor, his claim for a lien was fatally defective for failure to give the new owners of record, defendants Fox, the notice required by sec. 289.02(1), Stats., 1957, 1 within 60 days of furnishing the first labor and materials.
The circuit court determined that Duitman was a subcontractor at the time he furnished the labor and materials for which he claimed a lien and that, therefore, he did not have a lien because he failed to give the required 60 day notice. The court's holding was based upon Capital City Lumber Co. v. Schroeder (1932), 208 Wis. 157, 242 N.W. 489. That case held that conveyance of real estate, at a time when work is in progress or the premises are subject to a claim for lien, does not affect the right of a materialman to a lien for labor and materials theretofore furnished provided the claim for lien is timely filed. See also Findorff v. Fuller & Johnson Mfg. Co. (1933), 212 Wis. 365, 248 N.W. 766. The court also determined in the Capital City case that a materialman had actual knowledge of the conveyance by the owner, his status changed from that of principal contractor to that of subcontractor as to materials thereafter furnished on the premises. The same principles are, of course, applicable to one who furnishes lienable labor instead of, or in addition to, materials.
We deem that the converse of the last stated holding of the Capital City case is also true, i. e., a materialman who is furnishing lienable labor or materials as a principal contractor does not become a subcontractor with respect to labor or materials thereafter supplied to the original owner, who has meanwhile conveyed the premises to a new owner, if the materialman has no actual or constructive knowledge of the conveyance. In the instant case, Duitman did not have actual knowledge of the conveyance by the Liebelts to defendants Fox until June 7, 1958, when the latter took possession of the premises. Duitman supplied labor and materials worth only $11.50 after June 7, 1958, during which time his status was clearly that of a subcontractor. The real controversy in this case revolves around Duitman's status before June 7, 1958, while furnishing the labor and materials which constitute the remaining $598.14 of his claim.
Duitman's position on this appeal is, apparently, that January 15, 1958, and not May 29, 1958, is the date when the first materials and labor were furnished with respect to his claim for lien inasmuch as he stands in the shoes of the predecessor partnership. Proceeding from this premise he then contends that the recording of the deed to defendants Fox on May 29, 1958, was not constructive notice to him. This is because the recording of a deed of conveyance is not constructive notice to all the world but only to subsequent purchasers or incumbrancers. Perkins v. Perkins (1921), 173 Wis. 421, 427, 180 N.W. 334, 181 N.W. 812; 45 Am.Jur., Records and Recording Laws, p. 469, sec. 87.
One who furnishes materials or labor for improving real estate and thereafter files a claim for a mechanic's lien against the premises is in a sense an incumbrancer. Cf. Redmon v. Phoenix Fire Ins. Co. (1881), 51 Wis. 292, 300-301, 8 N.W. 226. Nevertheless, the critical date, insofar as the lien claimant's duty to check the records in the office of the register of deeds, is the first date on which he furnishes labor or materials because the right to a lien of a supplier of labor or materials arises on that date. We are of...
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