Cook v. Goodyear, 79 Wis. 606

Cook v. Goodyear

79 Wis. 606 | Wis. | 1891

Cassoday, J.

The court properly' excluded a deed of the land, said to have been executed and delivered by George Hiles and wife to,the Wisconsin Land & Town Site Company, May 24, 1886, but which was never recorded. That *611company is not a party to this action, and, of course, makes no claim to the land. In its absence, we do not feel warranted in determining whether the plaintiff’s claim for a lien is protected, as against that company, by the registry law, as argued by counsel. Secs. 2241, 2242, R. S.; Cutler v. James, 64 Wis. 173. Nor is it necessary. The plaintiff was not bound to allege or prove that the defendants, or either of them, had title to the land, in order to enforce his lien. Willer v. Bergenthal, 50 Wis. 474. The complaint alleged, in effect, that the appellants had, or claimed to have, some interest in or lien upon the premises, but which, if any, was subsequent to the lien of the plaintiff, and accrued on or after September 11, 1888; and hence tendered no issue respecting any prior outstanding paramount title. This being so, it was incompetent for the appellants or Hiles to set up or prove, by way of defense, such paramount title. This has, in principle, frequently been held in foreclosure actions, and is equally applicable here. Hekla Fire Ins. Co. v. Morrison, 56 Wis. 133. The principal contention is, in effect, that assuming that George Hiles had title to the land at the time of making the contract with McNutt, October 24, 1887, and subsequently while the mill was being constructed, yet that that contract did not give McNutt such an interest in the land as could be sub-ected to a lien for the plaintiff’s claim. This is on the theory that such contract made McNutt the mere tenant of Hiles, and that by a recent act of the legislature it is provided that sec. 3314, E. S., as amended by ch. 442, Laws of 1887, “ shall not be construed as giving a lien where the relation of landlord and tenant exists.” Ch. 466, Laws of 1887. This must refer strictly to the technical relation of landlord and tenant. W e are constrained to hold that the object of that provision was to protect the landlord, and prevent a mere tenant from incumbering so much of the estate as remained in the landlord. It was *612manifestly not designed to prevent a tenant for a long term of years from thus incumbering his leasehold interest. We have recently held that such leasehold interest was subject to such lien. Kendall Mfg. Co. v. Rundle, 78 Wis. 150. It is true that our attention was not'there called to ch. 466, Laws of 1887; but the act which that purports to construe provides, in effect, that in case machinery is purchased to be placed in, or connected with, any building or premises in which the purchaser has no sufficient interest to authorize a lien, the person furnishing the same shall have and retain a lien thereon, and, in case of default in payment, may remove the same from such building or premises. Ch. 442, Laws of 1887. There is nothing in ch. 466, Laws of 1887, which indicates a purpose to repeal that provision. Nor is there anything therein manifesting a purpose to re.peal or abrogate the provision found in ch. 349, Laws of 1885, and ch. 442, Laws of 1887, to the effect that where a person procures work or labor to be performed upon, or furnishes materials to be used in the erection, construction, or repair of, any building or machinery upon the land of another, so as to become a part of the freehold, the person performing such work or labor, or furnishing such materials, shall have a lien therefor, which “ 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 ” the statutes. Assuming Hiles to have been the owner of the land during the time named, then, as indicated in the foregoing statement, the findings of the court brought him within the provision of the statute just quoted. As indicated, the contract gave to McNutt, and the appellants claiming under him by an assignment thereof with consent of Hiles, the right to run and operate the mill for the term of five years. That contract cannot be regarded as creating the technical relation of landlord *613and tenant. That such structure was attached to the soil, so as to become a fixture, there can-be no question. The. interest of McNutt and the appellants, as his assignees in and to the realty, was manifestly such as to subject the same to a lien for the amount of the plaintiffs’ claim. Heath v. Solles, 73 Wis. 217; North v. La Flesh, 73 Wis. 520; Kerrick v. Ruggles, 78 Wis. 274.

By the Court.—Judgment of the circuit court is affirmed.