Connecticut Mutual Life Insurance v. Goldsmith

Kerwin, J. The controlling question upon both appeals in this case is whether the inchoate right of dower of the appellant Alpha O. Goldsmith was extinguished by the foreclosure in the mechanics’ lien suit. It is claimed on the part of the plaintiff that it was, while on the part of the appellant Alpha O. Goldsmith it is insisted 'that the foreclosure and sale under the mechanics’ liens, upon the undisputed facts, operated to revive in the appellant Alpha O. Goldsmith her inchoate dower interest which she had released in the mort [119] gage to B. K. Miller, trustee, in wliicli sbe joined with her husband. There is no claim here on the part of the plaintiff that the inchoate right of dower of the appellant Alpha 0. Goldsmith could be cut off by a mere foreclosure of the mechanics’ liens without a release in any manner of her right of dower. But the claim of plaintiff is that the interest of B. K. Miller, under his mortgage from defendant Ber-' nard Goldsfuith and wife, passed to the plaintiff under the foreclosure and sale in the mechanic’s lien action. It appears from the statement of facts that B. K. Miller held a mortgage from Bernard Goldsmith and wife, Alpha 0. Goldsmith, subequent to the mechanics’ liens, and that this mortgage was foreclosed, and a judgment entered in favor of Miller barring and foreclosing all the right, title, and interest of Bernard Goldsmith and the appellant Alpha 0. Goldsmith in the premises described in the mortgage. Subsequent to the entry of said judgment Miller was joined as defendant in the mechanic’s lien action, and judgment was thereafter rendered in such action adjudging that the premises described in the complaint and all the right, title, and interest of the defendants, including the defendant B. K. Miller, or any,, person claiming under them, be sold in accordance with the provisions of the statute for sale under foreclosure of mechanics’ liens, and that all the defendants and all persons claiming under them, or either of them, be forever barred and foreclosed of all right, title, interest, and equity of redemption in the premises. Under this judgment the property was sold and purchased by plaintiff. A very able and interesting argument is made by counsel for appellant Alpha 0. Goldsmith to the point that the foreclosure of the mechanics’ liens operated to revive the inchoate right of dower of Mrs. Goldsmith, and some stress is placed upon the fact that the plaintiff bid in the property a.t the mechanic’s lien sale, and that the judgment in the mechanic’s lien action was entered prior to the sale under the B. X. Mil [120] ler mortgage, and that there was no privity between the plaintiff and B. K. Miller. Bnt we think secs. 3321, 3324, 3326, Stats. (1898), establish the privity and are decisive of the question. Sec. 3324 provides that the interest of the owner of the premises at the time of the commencement of the work, or which “he or any person claiming under him has since acquired,” shall be sold. B. K. Miller, through his judgment of foreclosure under his mortgage, acquired the interest of the defendant Bernard Goldsmith discharged of all inchoate right of dower of Alpha, O. Goldsmith, and this interest under the statute was subject to the mechanics’ liens, since it, was an interest held by a person claiming under the defendant Bernard Goldsmith and acquired after the liens attached. The fact that Miller bought in under the sale on his foreclosure judgment subsequent to the judgment in the mechanic’s lien action does not better Alpha 0. Goldsmith’s position, since whatever rights Miller got by his judgment or under it were subject to the rights of the mechanic’s lien claimants. Miller, by the foreclosure and sale under his mortgage, acquired all the interest of Bernard Goldsmith and Alpha O. Goldsmith, and such interest passed under the sale in the mechanic’s lien action to the plaintiff by force of secs. 3321, 3324, 3326, 3169, Stats. (1898). Tallman v. Ely, 6 Wis. 244. The argument of counsel for appellant Alpha O. Goldsmith seems to be that the title of Miller through the mechanic’s lien action was defeated, that the mechanic’s lien action was hostile to the claim of Miller under his mortgage, and that' when his rights under the mortgage were barred the dower interest was revived. But we think this result by no means follows. We think the provisions of the statutes above referred to clearly mean that the purchaser under a mechanic’s lien sale takes the interest acquired subsequently to the attaching of the liens by any person claiming under the owner of the premises subsequent to the doing of the work or the furnishing of the materials. The interest of Miller un [121] der his mortgage was clearly one which accrued under Bernard Goldsmith since the mechanics’ liens attached, and, therefore, under the statutes above referred to, was subject to the mechanics’ liens. Sec. 3321, Stats. (1898), respecting actions for the foreclosure of mechanics’ liens, provides that all persons having bens upon the premises by mortgage, judgment, or otherwise subsequent to the lien sought to be foreclosed may be joined as parties defendant. Sec. 3324, respecting judgments in mechanic’s lien actions, provides that the judgment shall direct that the interest of the owner of the premises at the time of the commencement of the work or furnishing the materials, “or which he or any person claiming under him has since acquired, ... be sold to satisfy the amount of the lien of the plaintiff. ...” Sec. 3326 provides how sales under such judgments shall be made, and that such sales shall be absolute and without redemption, and that the deed given thereon in case the sale is confirmed “shall be effectual to pass to the purchaser all the interest in the premises directed to be sold.” It appears that the judgment in the mechanic’s lien action, •and under which the plaintiff derived title, was in the usual form, and clearly embraced-all the interest which Miller acquired under his mortgage foreclosure. Miller under the foreclosure of his mortgage acquired all the interest of the mortgagors in the premises. Sec. 3169 provides that such deed “shall vest in the purchaser all the right, title and interest of the mortgagor, his heirs, personal representatives and assigns in and to the premises sold and shall be a bar to all claim, right or equity of redemption therein, of and against the parties to such action, their heirs and personal representatives, and also against all persons claiming under them subsequent to the filing of the notice of the pendency of the action in which such judgment was rendered.” We therefore see no escape from the conclusion that the inchoate dower in [122] ’terest of appellant Alpha O. Goldsmith was extinguished and passed to Miller under bis mortgage and was not revived by the mechanic’s lien judgment, but passed to the purchaser under the mechanic’s lien sale. Numerous other questions are discussed upon these appeals, but we do not consider them material from the view we take of the case. Since Alpha 0. Goldsmith, appellant, has no inchoate dower interest in the premises, she is not prejudiced by the judgment. From what has been said it follows that the judgment must be affirmed on appeal of Alpha 0. Goldsmith and reversed on plaintiff’s-appeal. By the Cowrt. — The judgment is reversed, and the cause remanded with instructions to enter judgment in conformity with this opinion; the plaintiff to recover costs.