Edwards & McCulloch Lumber Co. v. Mosher

• Decision Date: 02 October 1894
• Citation: 88 Wis. 672,60 N.W. 264
• Court: Wisconsin Supreme Court
• Parties: EDWARDS & MCCULLOCH LUMBER CO. ET AL. v. MOSHER ET AL.

88 Wis. 672

60 N.W. 264

EDWARDS & MCCULLOCH LUMBER CO. ET AL.

v.MOSHER ET AL.

Supreme Court of Wisconsin.

Oct. 2, 1894.

Appeal from circuit court, Douglas county; R. D. Marshall, Judge.

Action by the Edwards & McCulloch Lumber Company and others against William Mosher and others. There was judgment for defendants, and plaintiffs appeal. Reversed.

Frederick H. Remington and Hughes & Jamison, for appellants, upon the proposition that the word “owner” does not always mean “absolute ownership,” cited: Dutro v. Wilson, 4 Ohio St. 102;Nordyke & Marmon Co. v. Hawkeye W. M. Co., 53 Iowa, 521, 5 N. W. 693;Alley v. Lanier, 1 Cold. 540; Phil. Mech. Liens, §§ 83, 84; McMullen v. Wenner, 16 Serg. & R. 18; Ware v. Jackson, 19 Ga. 452; Lozo v. Sutherland, 38 Mich. 168;Hilton v. Merrill, 106 Mass. 528;Wisconsin River Log-Driving Ass'n v. D. F. Comstock Lumber Co., 72 Wis. 464-467, 40 N. W. 146.F. W. Downer, Ross, Dwyer & Hanitch, and Spooner, Sanborn & Kerr, for respondents.

ORTON, C. J.

This is a consolidation of mechanics' lien cases and for materials for the erection and repairs of a store building and dwelling house on lots 24 and 25, in block 386, in West Superior, seventeenth division. The work was performed on said building and the materials furnished for the same in June, July, August, and September, 1891. The actions are brought against William Mosher, who had purchased the lots, and held a contract for a deed as assignee, with the consideration of $900 wholly unpaid, and interest thereon, and a half of the same past due; and against Neil Smith, the assignee of said Mosher; and against the Land & River Improvement Company, a foreign corporation, that owned said lots June 1, 1891, and sold the same to one H. S. Bradford on that day for $900, one-fourth payable annually, with interest at 8 per cent.; and Bradford sold and assigned his interest in the land contract to said Mosher before the commencement of said building, and Mosher made the contract for the erection and construction of the same, and was personally liable for the several claims of the plaintiffs. The conditions of said land contract were that the said purchaser was to erect on said lots a dwelling house to cost not less than $900, to be commenced not later than the 15th day of June, 1891; that all the buildings and improvements that were then on said lots, or that should be thereafter erected thereon, should be and remain the property of said corporation, until the contract is performed, and on default of any payment, or of paying taxes, or of erecting said building, the agreement to be null and void, at the option of said corporation, and all payments made forfeited; and time is made the essence of the contract. The said corporation, in its answer, alleged “that for the purpose of securing the payment of said sum and the performance of said condition it retained in itself the legal title to said premises.” The plaintiffs claim a lien on the interest of said corporation in said building and said lots on which said building stands. The contract for said building was let, and the work on the same commenced, immediately on the making of said contract, and the building was completed on the 6th day of September thereafter. The plaintiffs obtained judgment of lien on said building and lots limited to the interest of the said Mosher and his assignee in the premises, and the court refused to render judgment as against the interest of said corporation in the same, holding that said payments and the performance of said conditions are a lien on the premises prior to the liens of the plaintiffs for work, labor, and materials on said building; and this presents the only question on this appeal.

1. Previous to the enactment of chapter 349, Laws 1885, and as the law then was, this court had decided that the interest of a person in real estate, not acquired after the mechanic's or other lien attached, upon which a building or other improvement was erected, could not be sold to satisfy such lien unless the person so interested was personally liable for the payment of the debt. Rees v. Ludington, 13 Wis. 277;Wheeler v. Hall, 41 Wis. 447;Lauer v. Bandow, 43 Wis. 556. The statute under which these cases were decided was amended by the above chapter as follows: “And shall also attach to and be a lien upon the real property of any person on whose premises such improvements are made, such owner having knowledge thereof and consenting thereto, and may be enforced as provided in this chapter.”

2. Did the said corporation defendant hold such an interest in the premises as to be subject to said liens, within the purview of this amendment? In Heath v. Solles, 73 Wis. 217, 40 N. W. 804, it was held that this amendment extended the lien of mechanics and others so as to embrace the premises owned by the wife of the defendant who contracted the debt, she having knowledge of and consenting to the improvement made thereon by her husband. The late Mr. Justice Taylor uses this language in the opinion: “It is very evident that this statute was intended to change the law as heretofore existing in this state, as interpreted by the decisions of this court, by extending the lien of the mechanics and others so as to extend and cover the interest of persons in the real estate upon which the kind of improvements designated in said section 3314, Rev. St., were made, other than the person or persons incurring the debt for making such improvements. * * * Nor can there be any just cause of complaint by the owner of the real estate upon which the improvement is made. He has the whole benefit of the improvement made, and it is in furtherance of justice and equity that his property, which is presumed to have been enhanced in value by the labor or materials furnished, should pay for them.” This language is certainly broad enough to embrace the interest of the defendant corporation in the real estate in question, but as authority it must be limited to embrace only the full ownership of the real estate by the wife,--the only and real question in the case. But it would seem to have been the opinion of Mr. Justice Taylor that any interest in the real estate owned by a third person might be subject to the lien if he had knowledge of and consented to the improvement. The words “the real property of any person” and the word “owner,” in the amendment, must mean the same thing. “The word ‘land’ or ‘lands,’ and the words ‘real estate’ and ‘real property’ shall be construed to include lands, tenements, and hereditaments, and all rights thereto, and interests therein.” Rev. St. § 4971, subsec. 9. In such a contract of sale the legal title to the property remains in the vendor. Railway Co. v. Wilson, 25 Minn. 382; 1 Black, Judgm. § 438. The word “owner” does not always mean absolute ownership. Benjamin v. Wilson (Minn.) 26 N. W. 726;Ombony v. Jones, 19 N. Y. 234;Choteau v. Thompson, 2 Ohio St. 114; Harman v. Allen, 11 Ga. 45; Hooker v. McGlone, 42 Conn. 95; and other...