Peters v. Bossman

Eschweiler, J. It is undisputed that plaintiff’s purchase-money mortgage was duly recorded at the time the defendant Julius O. Bossman entered into possession of the farm pursuant to the conveyance of it to him by plaintiff, and that the said defendant remained in continuous possession of the said farm until long after the completion of the work. It is claimed in support of the conclusion reached by the [256] trial court that the conceded general rule that plaintiff’s mortgage, duly recorded and subsisting at the time the work was commenced and done upon the real estate, remains prior and superior to any claim of lien, is not applicable here for one or more of several contentions. That by sub. (7), sec. 3314, Stats., providing among other things that such a mechanic’s lien “shall also attach to and be a lien upon the real property of any person upon whose premises such improvements are made, such owner having knowledge thereof and consenting thereto,” etc. Or: Because the plaintiff, knowing of the work being done, has accepted the benefits. The trial court made findings to the effect that the work in question was done at the special instance and request of the defendant Julius O. Bossman and with the knowledge and consent and approval of plaintiff and at the request of plaintiff made through Julius O. Bossman; that Julius O. Bossman agreed to pay the claimant for such work; and that the plaintiff by his acts and conduct agreed to pay William F. Bossman. Also that the relation of landlord and tenant did not exist between any of the parties. In his decision, but not incorporated in the findings, is a statement by the trial court to the effect that, the two mortgages being in apparent excess of the value of the farm, plaintiff’s ownership of the second mortgage, subject as it must be to the first mortgage, made him in effect the virtual owner of the real estate. Respondent also urges that the mortgage interest held by plaintiff was such an interest in the real estate'as to warrant a conclusion that he, owning such an interest, was an “owner” within the language of the above quotation from the statute. Julius O. Bossman was the owner and in possession of this real estate. The contract for the improvement was made with him alone and it is his interest in the real estate only that can be affected by the lien claimed. Any apparent consent by plaintiff that the work might be done and his [257] knowledge that it was being done are entirely immaterial, as much so as if by a landlord. J. B. Alfree Mfg. Co. v. Henry, 96 Wis. 327, 332, 71 N. W. 370; Rohn v. Cook, 165 Wis. 299, 305, 162 N. W. 183. The record title and possession of Julius O. Bossman cannot be so summarily set aside. Plaintiff in no manner asserted any title by right of possession as owner during this period. A mortgagee out of possession, as here, is'not regarded as the owner under such statutes. 18 Ruling Case Law, 885. Were he'in possession claiming title before or after foreclosure the rule might be different. Lindholm v. Hamilton (Minn.) 198 N. W. 289. The judgment so far as here presented cannot be supported on any theory. By the Court. — Judgment modified by striking therefrom so much as declares the lien of the claimant prior or superior to that of the plaintiff.