33 Wis. 267 | Wis. | 1873
We find no difficulty in holding with the circuit court, that, as between the plaintiffs and. Mrs. Wadleigh, all of the lumber furnished by the former to the latter, whether for the new house, the outbuildings, the barn or the small house — whether.used upon the “north lot” or the “south lot,” — was furnished under a single contract; that is, under the contract made in the fall of 1867, as modified or enlarged by including in it the lumber for the barn, in the spring of 1869. The lumber having been delivered at different times, but all in pursuance of one contract, and the petition for the lien having been filed in the proper office within six months, and this action commenced within one year, from the date of the last delivery of lumber in execution of such contract, there can be no doubt of the right of the plaintiffs to a judgment giving them a specific lien upon, and subjecting the right, title and interest of Mrs. Wadleigh, in both lots, to the payment of the unpaid balance of the price or value of such lumber, before any other lien on such lots which originated subsequently to the commencement of such house, buildings or repairs. Tay. Stats., 1762, § 1, and 1764, § 6; Fowler v. Bailey, 14 Wis., 125.
But we are called upon to determine the respective rights of the plaintiffs and the defendant Bouch, the mortgagee, in the premises affected by these proceedings.
It is clear that the mortgagee can not be prejudiced by any change or modification of the original contract between the plaintiffs and Mrs. Wadleigh. He took each mortgage subject only to existing conditions, and it was not competent for other parties to do any act which would operate retrospectively to his injury. Hence, while the whole lien of the plaintiffs, on both lots (as between them and Mrs. Wadleigh), dates from the commencement of the new house on the “ north lot,” as be
By adopting and applying these principles, the plaintiffs’ right to a lien is saved, and at the same time the rights of the mortgagee are fully protected.
It may be observed here, that the attaching to the realty of any material used in constructing a new building, or in making repairs, is the commencement, of such building or repairs within the meaning of the statute. It was so held in Jessup v. Stone, 13 Wis., 466. This rule is reasonable and just, in that it requires an open, visible act to fix and establish the precise time when the mechanic or material man shall have priority of lien over subsequent incumbrancers. Under this rule a person about to take a mortgage upon real estate may determine with absolute certainty, by an examination of the premises, whether his security is liable to be, or can be, impaired by liens of mechanics or material men under the statute. Any other rule might work great wrong and injustice. The person furnishing materials can always protect himself by stipulating for, and insisting upon, an early commencement of the work, thus securing the priority of his lien, should he be compelled to resort to that remedy to obtain payment for such materials.
The precise time when the new house was commenced is left somewhat uncertain by the testimony; but it was probably in the early part of May, 1868. The repairs on the small house and the building of the barn were commenced in the spring of 1869.
By applying the principles above stated to the facts of this case, we find that the relative rights of the plaintiffs and the mortgagee in and to the lots in question, are as follows:
1. As to the “south lot,” the mortgages of May 21, 1867, and August 1, 1868, have prioritv over the whole of the*274 plaintiffs’ lien, and sucb lien has priority over all of the other mortgages.
2. As to the “ north lot,” the mortgage of March 4, 1868, is prior to any lien of the plaintiffs; $225.99 of such lien, and interest thereon from the commencement of the action, has priority over all the other mortgages on such lot. The mortgage of May 21, 1868, takes precedence of the balance of the plaintiffs’ lien.
'3. The mortgages recorded August 6, 1869, and November 23, 1870, are subordinate to the whole amount of the plaintiffs’ lien.
It follows that the judgment must be reversed, and the cause remanded, with directions to the circuit court to render a judgment in accordance with this opinion.
By the Court. — So ordered.
