Glass v. Zachow

156 Wis. 21 | Wis. | 1914

Keewik, J.

The question involved is whether the plaintiff, by laches in failing to promptly prosecute his claim and file notice of lis pendens, waived his lien. The contention of the respondent is that, since the statute provides'that the judgment shall adjudge the amount due and direct that the interest of the owner in the premises at the .time of the commencement of the work or furnishing materials for which liens are given or which he or any person claiming under him has since acquired he sold to satisfy the amount of the lien, a special statutory lien is given, which cannot he affected or cut off by conveyance of the premises, and relies upon Webster v. Pierce, 108 Wis. 407, 83 N. W. 938, and Hewett v. Currier, 63 Wis. 386, 23 N. W. 884. But neither of these cases reaches the question here.

Conceding, without deciding, that the lien of the plaintiff ■could not be cut off by a conveyance after it bad attached had the plaintiff promptly pursued his remedy and not slept upon his rights, we are of opinion that the laches of the plaintiff here amounted to a waiver of his lien as against .subsequent purchasers in good faith, for value. So we need not consider cases holding that a mechanic’s lien cannot be defeated by a conveyance of the property in cases where there has been no laches or conduct upon the part of the ■claimant amounting to a waiver of the lien. The plaintiff here filed his lien, and served a summons and complaint December 7, 1908, and did nothing further in the action until May 8, 1909, when the summons and complaint were filed, and afterwards and on December 2, 1910, filed a notice of Ms pendens. In the meantime defendants Zachow and Feldt purchased the property in good faith, for value, and without actual notice of plaintiff’s claim. The question .arises, Did they have constructive notice? We think not. Although the summons and complaint were filed before Feldt bought, the filing did not constitute constructive notice, because of the statutory lis pendens. Sec. 3187, Stats. This .section provides for filing notice of lis pendens in actions affecting the title to real estate, and makes such filing notice to a purchaser or incumbrancer of the property affected thereby. The statute, as regards subsequent purchasers and incumbrancers, supplements the common-law lis pendens, and to the extent that its filing is constructive notice to subsequent purchasers and incumbrancers it is exclusive, and the common-law Us pendens does not apply. Brown v. Cohn, 95 Wis. 90, 93, 69 N. W. 71; Pennington v. Martin, 146 Ind. 635, 45 N. E. 1111; Bennett, Lis Pendens, sec. 321; Bensley v. Mountain Lake W. Co. 13 Cal. 306, 73 Am. Dec. 575; Corwin v. Bensley, 43 Cal. 253; Abadie v. Lobero, 36 Cal. 390; Jorgenson v. M. & St. L. R. Co. 25 Minn. 206; 35 Cyc. 1466, 1467.

It' follows, therefore, that the Zachows and Feldts bad no constructive notice until the filing of the notice of lis pen-dens:, wbicb was after they purchased.

The plaintiff was bound to prosecute his case in good faith and with reasonable diligence in order to preserve his lien against subsequent purchasers in good faith, for value, without notice of the plaintiff’s claim. Hammond v. Paxton, 58 Mich. 393, 25 N. W. 321; Smith v. Shell Lake L. Co. 68 Wis. 89, 31 N. W. 694. The plaintiff merely filed his lien, but did not' file the summons or complaint or take any further action in the case until long after the expiration of the year during which the statute requires action to be commenced. This, we think, was such laches as amounted to a waiver of the lien as against subsequent purchasers in good faith, for value, without' notice. 27 Cyc. 343. It was held in Ehrman v. Kendrick, 1 Met. (Ky.) 146, that failure for four years to prosecute' to a decree will deprive the lien of its validity as against a subsequent mortgagee without notice.

In Petree v. Bell, 2 Bush, 58, it was held that a delay of nearly two years, without excuse or explanation, to prosecute an action was sufficient to deprive the plaintiff of the benefit of Us pendens.

In Herrington v. McCollum, 73 Ill. 476, it was held that a lien was discharged by lack of diligence to prosecute. At page 484 the court said:

“If to permit a case to remain off docket for two entire years, during four regular terms of court, without making any effort to reinstate it, and have a hearing, can be called the exercise of reasonable diligence, or, indeed, any degree of diligence whatever, it would be difficult to determine what might be regarded as laches in the prosecution of a suit.”

The course pursued by plaintiff was well calculated to deceive purchasers of the property. The statute requires suit to be brought for foreclosure of mechanics’ liens within one year, obviously for the purpose of speeding the settlement and adjustment of such matters. The statute also provides easy means of protecting the lien claimant in case of delay in prosecuting a lien suit by filing a lis pendens. Had the summons, complaint, and notice of lis pendens been seasonably filed as provided by statute, and the suit prosecuted with diligence, all parties would have been protected and the lien of the plaintiff preserved. The fact that nothing appeared of record until long after the time for bringing .suit to enforce the lien had expired and no lis pendens filed would naturally lead purchasers to believe that the claim for lien had been abandoned. It follows that the judgment of the court below must be reversed.

By the Court.- — The judgment is reversed, and the cause remanded with instructions to dismiss the complaint as to defendants W. C. Zachow, Mary Zachow, Carl Feldt, and Wilhelmina Feldt.