J. B. Alfree Manufacturing Co. v. Henry

Pistnet, J. 1. "We do not think that any of the cas'es in this court cited and relied on by plaintiff’s counsel support or justify the amendment of the claim for a lien allowed by the court. There was no allegation or hint in the claim, as filed, of an intent to assert a lien on the fee-simple interest of the defendant Henry, the landlord, upon the premises. It mentioned and referred only to the leasehold interest in the premises of J. H. Reysen & Son. It did not disclose who was the owner in fee. Four years afterwards, when the case had been tried before the referee upon the application for a [332] judgment, the court directed-the amendment of the claim for a lien, and the complaint as well, so as to assert a claim to a lien not only upon said leasehold interest of J. IT. Rey-sen & Son,- but upon the distinct and separate property and estate in fee of the defendant Henry, who had not theretofore even been mentioned in said petition or claim, and judgment was given against his fee-simple estate accordingly. The time within which a lien or claim could be filed, if one could be filed against his estate under the statute, had expired. The action of the court was not the correction of a. mistake, or misdescription, or failure to properly describe the interest of J. II. Reysen &. Son, or of any one claiming-under them. It was an entirely new proceeding, taken after the time limited for it by the statute had expired. The claim, as originally filed, as against Henry's fee-simple estate, was wholly inoperative and a nullity. Knox v. Hilty, 118 Pa. St. 430; Bartley v. Smith, 43 N. J. Law, 321. There was nothing to amend by, and the ruling of the circuit court carried the doctrine of amendment to an extent entirely unwarranted. As was said in Fairchild v. Dean, 15 Wis. 210,. “ to supply the defect requires creation, not amendment.” 2. The lease from the defendant Henry of the premises-for fifty years created the relation of landlord and tenant between him and the Reysens, so that by ch. 466, Laws of 1887, amendatory of ch. 349, Laws of 1885, and ch. 442,. Laws of 1887 (S. & B. Ann. Stats, secs. 3314, 3314a), the plaintilf could not have a lien upon the property in question. The object of the statute was to prevent the estate or interest of the landlord being incumbered by liens under this-statute by the contract or action of the tenant. No contract relations existed between the plaintiff and the defendant Henry. The consent of the landlord to such improvement cannot countervail or overcome the manifest purpose and intent of the statute. Laws of 1887, ch. 466. The referee-found that under the lease of February 4, 1890, the defend [333] ants Eeysen had a leasehold interest in the premises therein described, but the court added to this finding that “ such lease does not create the relation of landlord and tenant, so as to deprive the plaintiff of its lien against the interest of said defendant Henry.” This is a conclusion of law, and we think it is an erroneous one. , The lease created the relation of landlord and tenant between the parties. This relation “subsists by virtue of a contract, express or implied, between two or more persons, for the possession of lands or tenements, in consideration of a certain rent to be paid therefor.” Taylor, Landlord & T. § 14; Bentley v. Adams, 92 Wis. 392. The language of the statute is general, and no exception can be read into it. There was no agreement in the lease, or contemporaneous with it, binding the tenants to build a mill on the premises or make other improvements. The agreement for a loan or advance money to build on or improve the property ivas not made until more than a year after the lease, and did not, in any respect, relate to the same subject matter, so as to entitle these documents to be read or considered together, nor did the lease contemplate the construction of a mill or other improvement on the premises for the benefit of the lessor, Henry. The cases of Cook v. Goodyear, 79 Wis. 606, and Bentley v. Adams, 92 Wis. 386, are clearly distinguishable from the present case. 3. The mill had been commenced and the contract entered into between the plaintiff and the Eeysens for the furnishing of the mill machinery to be placed in the building before the-defendant Henry agreed to loan the Reysens $8,000 to enable them to erect the building and to make the payments on the contract with the plaintiff. Within the case of Vilas v. McDonough Mfg. Co. 91 Wis. 607, the mortgage lien of the defendant Henry for $8,000 and interest is subordinate to the plaintiff’s lien -on the leasehold interest of the Eeysens. As nothing was ever advanced under the sec [334] ond mortgage for $2,000, the defendant Henry is in no position to complain of the judgment of the court in respect to it. 4. There was no privity of contract between the plaintiff and the defendant Henry, so as to enable him to insist that there could be no recovery on the contract between the plaintiff and the Reysens, for want of performance of its conditions, as in Forster L. Co. v. Atkinson, 94 Wis. 578, and the defendant Henry made no. such defense in his answer. His mortgage interest in the leasehold was subject, therefore, to the amount that might be found due the plaintiff, and for which it was, or would be, entitled to a lien thereon. In the absence of fraud or unlawful combination, we do not perceive that the Reysens would be precluded from waiving strict performance of the plaintiff’s contract, and adjusting its claim on fair and equitable terms. There is no evidence of fraud or injustice in the plaintiff’s claim, and, if the contention of the defendant Henry is maintainable, the record contains no evidence to show what deduction, as against him, if any, ought to have been made from its claim. It is unnecessary, therefore, to give this point further consideration. Our conclusion is that the part of the judgment appealed from which determines that the plaintiff’s claim be a lien upon the estate of the defendant Henry, as owner in fee of the premises therein described, and directs the sale thereof, is erroneous and must be reversed, and that in all other respects the judgment should be affirmed. By the- Gourt.— Judgment is ordered accordingly.