Challoner v. Bouck

Cole, C. J. The theory of the complaint seems to be that Mr. Boude and Mr. Felker owned the mill property as tenants in common, and that Mr. Felker, in making repairs on the mill, acted on behalf of Mr. Boude as well as himself. Rut the evidence conclusively establishes the fact that no such relation existed between them; consequently no inferences can be made founded on the existence of that relation. The referee found that at the time the work was done and materials furnished for which a mechanic’s lien is claimed, that Mr. Boude held the legal title to the mill property as security for money loaned Asaph Howard; also for money paid to discharge certain liens upon the pivqperty, and for money paid on obligations incurred by Mr. Boude for and on behalf of Mr. Felker. In other words, that, as between Mr. Boiide and Mr. Felker, the true relation was that of mortgagee and mortgagor. There can be no doubt but this finding is sustained by almost all the evidence bearing on the question. It is true, it appears Mr. Bouok had taken two sheriff’s deeds upon the property, nevertheless his interest therein was that of a mortgagee merely. Mr. Felker could acquire that interest at any time upon paying Mr. Bouok the debt for which the property stood as security. Whether in fact Mr. Felker was the real owner, subject to the liens, is an immaterial question. It is a fair inference from his answer that he claims to be such owner. A personal judgment was given against him for the amount found due the plaintiffs’ intestate for work done upon and materials furnished for the mill at Mr. Felker’s request, and the judgment is made a [655] lien upon his title and interest in the property, whatever it may be. But upon the proof the court was clearly right in treating Mr. Bouoh as the mortgagee of the property. Beyond all question he had a lien for a large amount of money which was prior in time and. superior in equity to the lien for repairs. Possibly Mr. Bouoh may have paid money on obligations incurred on behalf of Mr. Eelker subsequent to the commencement of the work of repairing the mill, and that to the extent of such payments his lien would be held subject to the one for repairs; but upon that question we express no opinion. The matter, whether any such payments were made, does not seem to have been much investigated on the trial, and certainly no point is made upon it here. The action is not to ascertain the amount of any lien which Mr. Bouoh may have prior to the lien for repairs, and to enforce the latter subject to the former, but, as we have said, the action is brought upon the theory that Mr. Bouoh and Mr. Eelker were tenants in common in the mill property, and were both liable for the work done and materials furnished to repair it. But that claim cannot be sustained upon the evidence. The title of record appeared to bo in Mr. Bouoh. Such being the case, the counsel for the plaintiffs insists that George Challoner had the right to treat him as the true owner, and to assume that the repairs were upon his property and for his benefit. It is not pretended that Mr. Bouoh, by word or act, attempted to mislead any one as to his interest in the property. It is true, the written agreement between him and Mr. Eelker of August 24, 1 §71, was not recorded; while the sheriff’s deed, of May 21, 1811, was. One of the plaintiffs in effect testified that when the work of repairing the mill was commenced, the general understanding in Omro was that Mr. Bouoh was interested in it, and that work was furnished for a time on that inference. But when more work . was required than was supposed to be necessary at the start, [656] then the records were searched to see whether Mr. Bouok was interested in the property or not; and that on the strength of the record the repairs were made. If Mr. George Challoner had inquired of Mr. Bouok as to his'interest in the property he would doubtless have learned the truth in regard to it. Or if he had inquired of Mr. Bouok whether he was interested in the repairs being made, or whether Mr. Felker was acting as his agent in making them, he would have exercised common prudence and diligence. But he did nothing of the kind. If we were to hold that he had the right to rely upon the record, and assume from it that Mr. Bouck was the real owner, yet it does not appear that he used any means to ascertain whether Mr. Felker had authority to act for Mr. Bouok in the matter. While, therefore, we might be satisfied that the referee found correctly, upon the evidence, that the repairs on the mill were made by Mr. Felker with Mr. Bouok's knowledge and consent, yet we should be compelled to affirm the other finding, that in the matter of making those repairs Mr. Felker did not act for and was not the agent of Mr. Bouok. The law applicable to that state of facts is laid down in Lauer v. Bandow, 43 Wis., 556. “ Parol agency to ■ charge a principal’s realty ought to be express, and clearly established.” In any view which we have been able to take of the case we think the judgment of the circuit court is correct and must be affirmed. • By ike Court.— Judgment affirmed.