88 Wis. 672 | Wis. | 1894
The following opinion was filed October 2, 1894:
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, 17th 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 Gompam-y, a foreign corporation,
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, 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 Tavlok uses this language in the opinion: “It is very evident that this statute was intended to change the law as theretofore 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 inte?'est of persons in the real estate upon which the kind of improvements designated in said sec. 3314, R. S., 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
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.” R. S. sec. 4971, subd. 9. In such a contract of sale the legal title to the property remains in the vendor. Minneapolis & St. L. R. Co. v. Wilson, 25 Minn. 382; 1 Black, Judgm. § 438. The word “owner” does not always mean absolute ownership. Benjamin v. Wilson, 34 Minn. 517; 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 cases in appellants’ brief. When the vendor has consented to the purchaser building on the premises, and he has given the purchaser a bond for deed on full payment, his interest in the land is subject to the mechanic’s lien. Davis v. Humphrey, 112 Mass. 309; McGue v. Whitwell, 156 Mass. 205; Carew v. Stubbs, 155 Mass. 549. The vendor in such a case continues to be the owner of the land, subject to the equity of redemption in the purchaser, until the purchase money is paid. Church v. Smith, 39 Wis. 492; Hinman v. Hartford F. Ins. Co. 36 Wis. 159. The purchaser, having a mere equitable title, may also be called the owner. The interest of the purchaser is measured by the part of the
As a matter of course the vendor’s interest in-the land cannot be sold to satisfy the mechanic’s lien unless he had knowledge of and consented to the improvement. But the land contract in this case would seem to make it very clear that the vendor’s interest should be subject to the lien, whatever it may be called, in justice and equity, and within the terms of the amendment. (1) Nothing was paid down on the contract. (2) The vendor not only had knowledge of and consented to the building to cost $900, but required it to be built as one of the conditions of the contract. (3) The vendor retains the legal title to the lots, and obtains also the ownership of the building, until the purchase money is fully paid. (4) The vendor was the full and absolute owner, of the lots when he contracted for the construction
It seems to be very clear that the defendant corporation has an interest in or ownership of the lots under this contract of sale ithat is subject to the plaintiffs’ liens, and that it can properly be called the owner of the premises, within the purview of ch. 349, Laws of 1885. In so holding We place great weight upon the peculiar conditions of the contract of sale, and only so construe the statute in special reference to this case.
By the Court.— The judgment of the circuit court is reversed, and the cause remanded with direction to render judgments of lien against all of the defendants and their several interests in the premises, and that they may be sold to satisfy the said liens.
I entirely agree with the very lucid opinion filed by the circuit judge in this case. After reviewing the authorities, he comes to the following conclusion: “A conclusion is therefore reached that the claim of the Land
A motion for a rehearing was denied December 11,1894.