Fischer v. Meiroff

Eschweiler, J. The appellants contend that, there being three separate contracts, they could not be combined in one claim of lien; that the defendant wife not being designated as a party in any of the contracts, though a joint owner, cannot be held liable; that the judgment is improper because for an entire sum on the entire lot, thereby preventing defendants from releasing as to one building by paying the balance due thereon without redeeming by paying the entire amount; and finally, that the separating of the premises for mortgage purposes separated it also for lien purposes. We find no merit in these contentions. No objection was raised prior to trial by motion or demurrer raising any question as to the propriety of so including in one complaint or one claim for lien three separate contracts for three separate buildings on the same city lot whose total extent was less than one acre, the maximum prescribed by the statute for the lienable unit in a city. Oúr lien statutes, secs. 289.01 and 289.02, neither expressly provide for nor do they expressly prohibit the making of such a claim for lien. We can find no substantial argument against the permitting one lien claim for that which is done upon such premises in separate and independent structures or by separate and independent contracts, provided the other conditions required by the statute are shown to have been performed. [485] We think this conclusion is supported by the holding of this court in Chapman v. Wadleigh, 33 Wis. 267, where by modification of the original contract additional buildings were placed on the same premises. It finds support also in cases such as Booth v. Pendola, 88 Cal. 36, 23 Pac. 200, 25 Pac. 1101; Kinney v. Duluth Ore Co. 58 Minn. 455, 458, 60 N. W. 23; Grace v. Nesbitt, 109 Mo. 9, 16, 18 S. W. 1118. This view is further strengthened because no provision is made in the statute whereby the unit of one acre in cities and villages and of forty acres in the country can be cut up and divided, for lien purposes, to accommodate several structures that may be thereupon erected, or any method provided of determining in such a case as here presented how» much should be set apart for the several separate buildings. The claim of lien asserted that although the work was done at the express direction of the husband, yet that it was at the instance and request of both defendants. The court expressly found that the defendant wife, interested as equal owner in the premises with her husband, had knowledge of the work going on and consented thereto, and there is ample support for such finding. This is sufficient under the statute, sec. 289.01, to subject the interests of both defendants to the lien. Lents v. Eimermann, 119 Wis. 492, 97 N. W. 181; 18 Ruling Case Law, 903; 40 Corp. Jur. 98; and cases both ways are given and cited in 4 A. L. R. 1013 to 1066. A question is raised by defendants as to whether, if the work under one or two of the three several contracts had been completed more than six months prior to the date of the filing of the claim, the fact that the final work under one of the contracts was done within the six months could preserve the validity of the lien for such other contracts. When this was presented, and it was only raised as to the dwelling erected under the earliest of the three contracts, the trial [486] court permitted an offered amendment to the answer to so raise it, and then after evidence on both sides found that there was work done under that contract on this dwelling within the six-months period. The evidence was sufficient to support the finding and it should be upheld. The work was sufficiently continuous to satisfy the rule. Taylor v. Dall L. & Z. Co. 131 Wis. 348, 357, 111 N. W. 490; Evans-Lee Co. v. Hoton, 190 Wis. 207, 212, 213, 208 N. W. 872; Shaughnessy v. Isenberg, 213 Mass. 159, 161, 99 N. E. 975; See v. Kolodny, 227 Mass. 446, 449, 116 N. E. 888. Lastly, that as between the defendants, mortgagors, and the mortgagee building and loan association, there was a division of the property and separate mortgages made upon .two parts of the lot, is manifestly entirely immaterial in this case, such mortgagee not being a party here. By the Court. — Judgment affirmed.