Darling v. Neumeister

"W IN slow, J. "We discover no ground for reversal in this case. A homestead is distinctly made subject to sale for mechanics’ liens thereon by the statute (R. S. 1878, sec. 2983). [428] A mechanic’s lien is given upon forty acres of land upon which the building is built or work done if not within a city or incorporated village. R. S. 1878, sec. 8314. The buildings on account of which these liens were claimed were admitted to have been built upon the identical forty acres upon which the court adjudged a lien. Therefore the judgment seems to be strictly within the statute. The claim for lien must specifically describe the land affected thereby (R. S. 1878, sec. 3320); and it is'difficult to see how the plaintiff’s right to a lien can be cut down by the court when he has simply claimed a lien upon forty acres of land upon which the buildings are located. Even if the court could, upon equitable considerations, order the north part of the forty containing the defendant’s house and barns to be sold last, or exempt it from sale entirely, and carve out another forty acres, not according to government subdivisions, but composed of the south 22.74 acres of the forty in question, and the north 17.26 of the adjoining forty on the south, there are no such considerations in this case. On the contrary, the evidence shows that the middle forty is heavily incumbered with mortgages, which are prior liens, and the.probability is that the lien claimants could realize little or nothing from its sale. Moreover, the defendant never requested findings as to the homestead until after judgment had been signed, and then filed a paper containing exceptions to certain findings and requests to find as to the alleged homestead. These requests seem never to have been brought to the attention of the court. The rule is well settled that, if a particular finding is desired, the party must call the attention of the court to the fact on which he desires a finding; and if he does not, and the findings actually.made are correct, and no different findings are required as matter of law, then no advantage can be taken of the neglect of the court. Wetzler v. Duffy, 78 Wis. 170. By the Gourt.— Judgment affirmed.