Paige v. Peters, 70 Wis. 178

70 Wis. 178 | Wis. | 1887

Oassoday, J.

1. Peters entered the land as a homestead claimant under the laws of the United States, October 7, 1878. Secs. 2289, 2290, E. S. of U. S. April 7, 1884, he made and filed in the land office his final and requisite proofs, and thereby became entitled to a patent. Ilid. It is conceded that no patent was issued thereon until after the trial of this action. The plaintiff’s debt against Peters was contracted, and the machinery purchased thereby used in and upon the saw-mill upon the land in question, some two months prior to the making and filing of such final proofs. He claims a lien therefor, and in fact filed such claim, as required by the statutes of the state, Julyr 11, 1884. Secs. 3314, 3318, 3320, E. S. The action was commenced and notice of Us pendens filed within the time and manner required by the statutes to preserve the lien, if not otherwise barred. Secs. 3318, 3321, 3322, E. S. It is claimed by the plaintiff, that notwithstanding no patent had ever been issued to Peters, yet he had an equitable interest in the land, to which such alleged lien attached and against which it can be enforced. The statutes of the United States, under which such homestead entry was made, declare that “ no lands acquired under the provisions of this chapter shall in any event become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor.” Sec. 2296, E, S. of U. S. Did this section bar the claim of the plaintiff for a lien upon the land ? Upon such a question, the decisions of the supreme court of the United States are, of course, binding upon the state courts. In speaking of a somewhat similar statute it was said in Wilcox v. McConnell, 13 Pet. 516, 517, that “ Congress has declared, as we have said, by its legislation, that in such a case as this a patent is necessary to complete the title. But in this case no patent has issued; and therefore, by the laws of the United States, the legal title has not passed, but remains in the United States. . . . We hold the true principle to be this: that, whenever the question in any court, state or federal, is whether a title to land which had once been the property of the United States has passed, that question must be resolved by the laws of the United States; but that, whenever, according to those laws, the title shall have •passed, then that property, like all other property in the state, is subject to the state legislation, so far as that legislation is consistent with the admission that the title passed and vested according to the laws of the United States.” See Irvine v. Marshall, 20 How. 564; Gibson v. Chouteau, 13 Wall. 92. To the same effect is Seymour v. Sanders, 3 Dill. 440, 441. In Fink v. O'Neil, 106 U. S. 283, Mr. Justice Matthews, arguendo, speaking for. the court, said the above section “ providing for the acquisition of homesteads for actual settlers upon the public lands, has made their exemption from sale on execution a permment part of the national policy, by declaring that lands so acquired shall not 1 in any event become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor.’ ” This is in harmony with the decision of this court in Gile v. Hallock, 33 Wis. 523. See Russell v. Lowth, 21 Minn. 167; Miller v. Little, 47 Cal. 348. As to those classes of cases holding that the interest of such occupant of such land is taxable ( Wis. Cent. R. Co. v. Price Co. 64 Wis. 594), or may 'be mortgaged or conveyed (Fuller v. Hunt, 48 Iowa, 163; Nycum v. McAllister, 33 Iowa, 374; Kirkaldie v. Larrabee, 31 Cal. 455) — it is unnecessary here to speak, since they do not come within the prohibition of the federal statutes cited. ¥e must hold that the plaintiff acquired no lien upon any estate in the land, either legal or equitable.

2. Whether he lost his lien upon the machinery sold to Peters and by him put in the mill is a different question. Our statutes provide, in effect, that in case the person so ■ordering or contracting “ for the purchase of any machinery to be placed in or connected to or with any building or premises,” has no interest in such building or premises, “sufficient for a lien as provided” therein, “to secure payment for said machinery, the person furnishing such machinery shall have and retain a lien upon such machinery, and shall have the right to remove from such building or premises such machinery, in case there shall be default in the payment for such machinery when due, leaving such building or premises in as good condition as they were before such machinery was placed in or on the same.” Sec. 3314, E. S. Under this statute, Peters contracted for and received the machinery in question, subject to such lien. The plaintiff has neither said nor done anything indicating an intention or willingness to relinquish such lien. On the contrary, he took all the statutory steps to preserve and continue the same. Has he lost it by the mere act of the defendant in placing it upon land which he occupied, but to which the title was in the United States? Peters necessarily knew the condition and nature of his title. Whether the plaintiff did, does not appear. The federal statute quoted was merely to preserve the land from the liability therein mentioned. It was no purpose of that statute to render state laws giving a lien upon personal property nugatory, merely because such property happened to be placed upon such land. Our statutes give such lien upon such machinery purchased under the circumstances indicated, as personal estate, to be enforced as prescribed. Wilson v. Rudd, ante, p. 98. We have not overlooked tbe Kansas case cited, Kansas Lumber Co. v. Jones, 32 Kan. 195. That case may be distinguished, since there is nothing here indicating any permanent attachment of the machinery to the soil, or that a removal of the same will materially impair the realty. We must, under our statutes, and upon the facts stated, hold that the plaintiff has a lien upon the machinery in question, as upon personal property, to be enforced in this action.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded with direction to enter judgment in favor of the plaintiff and against the defendant, as indicated in this opinion.