70 Wis. 98 | Wis. | 1887
Upon the findings of fact there can be no pretense of right on the part of the appellants to recover the property in question. The finding being that on the - day of ■-■, 1883, they sold and delivered the property in dispute to the parties under whom the defendants -claim title, there can be no claim of ownership on the part of the appellants as against the vendees and those claiming under them. To entitle the appellants to claim a lien in any shape, it was clearly necessary that there should have been proofs and a finding that the machinery so sold and delivered was sold on credit, and that the purchase money, or some part thereof, remained unpaid to the plaintiffs. Although there is nothing in the findings of fact upon this question, both parties have in their printed' briefs treated it as though this fact was in the case, and perhaps supposed it was in the findings. That the fact appeared on the trial would seem admitted from the course taken by the learned counsel for the respondents in the argument in this court. We will therefore decide the case upon the supposition that it appeared on the trial that the appellants sold the machinery on credit and had not been paid therefor by the vendees.
The appellants base their right to recover this machinery by an action of-replevin, or its value in trover if delivery of it be refused upon demand made upon the party having it in possession, under the latter clause of sec. 3314, E. S. 1878. This clause reads as follows: “In case any person shall order or contract for the purchase of any machinery to be placed in or connected to or with any building or
We cannot believe this to be the reasonable construction of this statute. The section in which this clause appears is a section de\Toted simply to declaring in Avhat cases and under Avhat circumstances a contractor aaTio performs any work or labor or furnishes any materials in the construction, repair, protection or remoAral of buildings or machinery constructed so as to become a part of the freehold upon which it is situated, shall have a lien upon the premises upon Avhioh the building or machinery is placed so as to become a part of the freehold, and declares the priority of all such liens. The latter clause, above noted, secures to the fur-nisher of machinery attached so as to become a part of the freehold, a lien upon such machinery, when the person purchasing and attaching it to the freehold has no interest in the freehold out of Avhich the claim of the furnisher can
It is argued by the learned counsel for the appellants that the lien mentioned in the second clause is only an extension of the common-law lien of the vendor for unpaid purchase money to the case where the possession of the property sold has been delivered to the vendee; but it is very clear that no such lien existed at common law after a delivery of the property after sale, when a credit for the purchase money was given. The lien claimed by the appellants is clearly a lien given by the statute, and consequently is lost after six months from the sale, unless a claim for such lien be filed as
By the Gourt.— The judgment of the circuit court is affirmed.