13 Wis. 466 | Wis. | 1861
By the Court,
Rees vs. Ludington [ante p. 277], disposes of this case. It is even much stronger against the appellants than that was against Ludington and others. Here it is understood that the mortgage to the respondents was executed, delivered and recorded prior to the commencement of the building, by virtue of the lien on which the appellants claim title ; while in that case the priority of the mortgage was the subject of serious controversy. After a careful consideration of the full and able printed argument presented by the counsel for the appellants, our judgment as to the proper construction of the statute, remains unchanged. The argument drawn from the language of the first section of the act is very forcible, and did not escape our attention on the former occasion; but for the reasons there given, we are still of opinion that it was not the intention of the legislature to give a lien upon the building which should be absolute and independent of that upon the title or interest of the owner in and to the land upon which it is erected. We think it was not the design, as between the building and the owner’s right or interest in the soil on which it stands, to create, in favor of mechanics and material men, different and variable degrees of lien, but to make one
In addition to the reasons given in Rees vs. Ludington, which are founded solely on the language of the statute, we may say that our views were not a little influenced by a consideration of the almost inextricable difficulties and conflicts which must arise from the general exercise of this power of removal. The rule is almost universal, that to the owner or person ultimately entitled to the fee, belong all erections and structures of a permanent character, which are annexed to the soil. As a general principle, the party in, or rightfully entitled to, the possession of the land, cannot be disturbed. When and how, then, was the purchaser to exercise his right of taking away the building? And if there were several purchasers under different liens, each claiming an individual interest, how were they to agree upon the course to be pursued ? And in case of contest or disagreement, how were their rights and equities to be adjusted? Was the building to remain upon the land, an annoyance to the owner, until their disputes could be settled in a court of equity or elsewhere, and perhaps a re-sale ordered ? These and other like difficulties suggested themselves to our minds. They were all matters for which the legislature had made no provision. In Pennsylvania, where, at one time, an act was so construed as to make the building the debtor, and to give the mechanic an absolute lien upon it, these difficulties were so great as to induce the courts to hold that a sale under it
Again; there are many instances where, if a removal were allowed, the buildings are so constructed that they cannot be taken away without occasioning permanent loss and injury to the freeholder. In such a case, is the innocent owner of the fee to submit to it without a compensation ? And if not, how is he to be made whole, when the damages are caused by the strict prosecution of another’s legal right ? There would be many cases too, where the exercise of such a right would be wholly impracticable as well as useless to the party possessing it. There are many buildings, the material and fabric of which are such, that to remove them is to convert them into a broken and worthless mass of ruins and fragments. We cannot believe that the legislature intended to provide a remedy, the pursuit of which must, in so many cases, result in the almost total destruction of the thing sought.
But conceding counsel to be correct in saying that the lien on the building is absolute, still we do not think that the position that it is prior to that of a previously existing incumbrance upon the land can be maintained. At best it can only be said to attach at the same point of time with
But more than all this, it may well be doubted whether the words “ which originated subsequent to the commencement of such house or other building,” were intended to apply to any but liens which are actually created by act of parties after the building is in fact commenced ; and whether a previously executed mortgage, or other prior lien, is within their operation. We think it is not, and for that reason the statutory lien cannot be preferred.
The judgment of the circuit court must be affirmed.