13 Wis. 276 | Wis. | 1860
By the Court,
This action was brought by Fees, the respondent, to foreclose a mortgage given by David P.' Hull. The appellants were made parties defendant, as subsequent incumbrancers, and the complaint sought the foreclosure of their rights. The appellants answered, claiming mechanic’s liens on the dwelling house erected by Hull on
The facts which are not disputed are briefly these: Bees made a contract with Hull to convey to him certain lots in Milwaukee, at an agreed price of ten thousand dollars, and to execute a deed to Hull on the 1st of December, 1857. Hull, on his part, agreed to make valuable improvements on the property, in particular to erect a brick dwelling house on it, and to have the same enclosed within one year from the date of the contract, and on receiving a deed from Bees, to give him back a bond and mortgage for the purchase money. This contract was dated November 18th, 1856, and was duly recorded. Hull commenced the building under the contract, about August 1st, 1857, and the lien of these appellants grew out of materials furnished and work done for that building. Hull complied with the contract on his part, and on the 18th of November, 1857, Bees made a deed to Hull, and took back from Hull the bond and mortgage for the foreclosure of which this action is brought. The respondent claims that his mortgage lien is paramount. The appellants claim that their lien is prior to the lien of the mortgage ; and that is the question here.
. It will be conceded by all that a lien for work and materials on a building, is a privilege derived entirely from statutory provision, and cannot be maintained beyond the extent of the grant of the act by which it is conferred. The determination, therefore, of the nature and extent of the appellants’ lien for materials, depends on the true construction of the statute in force at the time they were furnished. If, as was insisted by the counsel, it gave them a complete and absolute lien on the building, independently of any title or interest in the land upon which it was erected, so that the owner was not a trespasser or disseizor, and then added or annexed to such absolute lien, a further lien upon such right, title and interest in the land, if any, as belonged to him, in that case I should say that so far as the building is concerned the lien of the appellants would be paramount, and entitled to protection. I must confess that at the argument I was
Under this construction of the statute, the other question presented by the record is easily determined. The case stands as if the appellants had, at the time the building was commenced, been judgment creditors of Hull, whose judgments were a lien upon his equitable interest in the premises. If, having been such judgment creditors, their liens would have been prior to that of the respondent’s mortgage, then they are now; but if not, then they are subsequent and must be postponed to the lien of the mortgage. The authorities clearly establish that Rees’ interest in or lien upon the premises for unpaid purchase money was not diminished or impaired by his execution and delivery of a deed, when at the same time he received back a mortgage as- security for the price. The settled doctrine in such cases is, that when property passes through a man, without his having paid for it, and with an understanding that he is at once to secure the payment by a mortgage or lien on the property itself, no right vests in him except that which is subject to such payment ; that to the extent of the unpaid price, he is, in con
In this case, the interest of the respondent as mortgagee of the premises, must be regarded as identical with his interest as vendor under the previous executory contract of sale, and therefore paramount to the lien or interest of the appellants. It is but a continuation of his original security under another form.
The judgment of the circuit court, being in accordance with these principles, is affirmed, with costs.
[Note, by the Chiee Justice. — See Campbell md PTm'd’s Appeal, 36 Pa. St. Rep., 247, in which the doctrines of the foregoing opinion are discussed and fully sustained.]