Rice v. Hall

41 Wis. 453 | Wis. | 1877

LyoN, J.

This is an action to enforce a lien upon the dame premises described in the complaint in Wheeler v. Hall (ante, p. 447), for the price of certain machinery furnished by the plaintiffs (who are foundrymen), and used in erecting and repairing the mills on such premises. As in that case, this appeal is from an order of the circuit court overruling a general demurrer to the complaint, interposed by the defendant Luey Hall. The only question to be determined is, whether the complaint states facts sufficient to constitute a cause of action against the appellant.

It is alleged in the complaint that a portion of the machinery was furnished at the request of the defendant James Hall, and a portion at the request and upon the express orders of the appellant; also that the premises upon which a lien is claimed, were when the machinery was furnished, and still are, occupied by James Hall, and were then and are still “ owned by one or both of said defendants in common or otherwise;” and that the appellant claims some interest in or title to a part of the premises, “ but what her precise interest or title is, the plaintiffs are not able to state, but claim that whatever the same may be, it is subordinate to the claims of the plaintiffs,” as stated in the complaint. The substance of the petition for a lien, and the date of the filing thereof in the proper office, are stated in the complaint. There is no demand for a personal judgment against the appellant.

As we understand the complaint, it substantially avers that the appellant acquired an interest in the premises upon which the plaintiffs seek to enforce a lien, after their right to such lien attached, and hence, that her interest is subordinate or subject to their claim. Were this air action to foreclose a mortgage executed and recorded before the appellant acquired an interest in the premises, there is no doubt she would be a proper party defendant to the action. Why is she not a proper party defendant in this action to enforce a specific lien? Unless made a party in the lien action, the purchaser at the execution sale might be driven to an action against her to perfect his title. It is manifestly for the benefit of all parties that the rights of all persons claiming an interest in the premises subsequent to the lien be settled in the action to enforce the lien. Surely it is to the advantage of those claiming such interest to be made parties in the lien suit, for it gives them an early opportunity to contest the amount of the lien, and enables them to ascertain the extent of the incum-brances to which their interest is subject. In short,'the reasons for making a subsequent purchaser or incumbrancer a party defendant to a foreclosure action, apply with equal force to an action like this.

But further discussion is unnecessary. The question was settled by this court in McCoy v. Quick, 30 Wis., 521. It is there held that a subsequent purchaser or incumbrancer is a proper party to an action brought to enforce a specific lien for materials and labor. See also Hall v. Hinckley, 32 id., 362. We have no doubt the ruling is sound in principle.

We conclude that the complaint states facts which show that the appellant, although not absolutely a necessary party, is a proper party to the action, and hence, that the demurrer thereto was properly overruled.

By the Court. — Order affirmed.