Lampson v. Bowen

Lyon, J. Although not a party to the record in the lien suit, the appellant, who acquired his interest in the lots affected by that suit after the erection of the house thereon was commenced, is the real party in interest as to that portion of the judgment which makes the amount thereof a specific lien upon the house and lots in question. If the judgment stands, he must pay it to protect his title acquired at the foreclosure sale, and he has no remedy over against Joseph S. or George Curtis. Hence he ought to have, and must have, the right to resist the enforcement of the lien, either in the lien suit or in some future action between the parties interested. On the authority of The Ætna Ins. Co. v. Aldrich, 38 Wis., 107, we think the circuit court had power, on a proper showing by the appellant, and on his motion, to open the judgment within one year after it was entered, and admit the appellant to defend against the claim of the plaintiff for ai lien on the premises. That the appellant may litigate the right of the plaintiff to such lien, in a future action between them brought by either party to recover the property or to quiet the title thereto, notwithstanding the judgment in the lien suit, was determined in McCoy v. Quick, 30 Wis., 521. But it will avoid circuity of action and best promote the interests of all parties concerned, to determine in the lien suit the whole controversy and settle the rights of all parties in the premises in question. This cannot be done unless the appellant be made a party to the lien suit. Hence, we think the appellant’s motion should have been granted, if he has shown that his interest in the premises in question is not subject to the lien adjudged in favor of the plaintiff’. It is not denied that Joseph S. Curtis, was indebted to the plaintiff to the amount of the judgment,- that as against [489] said Curtis the plaintiff is entitled to a lien upon the premises for such amount; and that the erection of the house was commenced before the execution of the appellant’s mortgage. There is, therefore, no question of fraud in the case. The only other ground upon which the appellant claims that his interest in the premises is not subject to a lien for plaintiff’s demand, is, that no part of such demand accrued before the execution and recording of his mortgage. Ve think this ground is untenable. The statute provides that such lien shall be paramount to any other lien which originated subsequent to the' commencement of the building. R. S., ch. 153, sec. 1 (Tay. Stats., 1762, § 1). The language of the statute is very plain, and leaves no doubt as to what is intended. To. construe the' statute to mean that such lien should commence to run from the time the mechanic commenced work on the house, or the material man commenced to furnish materials therefor, and should only be paramount to liens which originated after that time, but subject to liens which originated before that time and after the erection of the building was commenced, would be to pervert the language and plain meaning of the statute. Chapman v. Wadleigh, 33 Wis., 267, is somewhat relied upon by the learned counsel for the appellant as tending to establish the opposite view of the statute. We think, however, that the case is in harmony with the views above expressed. The facts were somewhat complicated, a lien having been claimed for lumber furnished to erect two buildings on one lot and to repair another building on an adjoining lot. We held that the lien for the price of the lumber furnished for each building dated from the commencement of such building or the repair thereof; and on that basis we adjusted the rights of the plaintiffs and of a defendant who owned several mortgages on the lots executed'at different times. We conclude that the appellant failed to show any valid-reason why the lien judgment should be opened to allow him [490] to come in and defend -against the lien, and hence, that the circuit court properly denied his motion in that behalf. Of course, if the appellant has any valid defense to the claim of the plaintiff for a lien, not disclosed on his motion, lie may avail himself thereof in any appropriate action brought to determine his rights or those of the plaintiff' in the premises in question. McCoy v. Quick, supra; Hall v. Hinckley, 32 Wis., 362. By the Court. — The order appealed from is affirmed.