Smith vs. The Shell Lake Lumber Co., imp.

date at which the lien attaches can divest such lien. If the laborer has an acknowledged claim or lien upon the property, no act of the owner can divest it. If the lien can be divested without the consent of the claimant by the single will of the owner, then there is wanting the very essence of a lien. That a statutory lien is to be construed as of the same nature and efficacy without actual possession as the common-law lien with possession, seems to be well settled by all the authorities.

In Beall v. White, 94 U. S. 386, the court say: "Statutory liens have, without possession, the same operation and efficacy that existed in common-law liens where the posses-sion was delivered."

"The office of a lien is not to create an estate, nor in the slightest degree to affect or interfere with prior incumbrances, but to prevent subsequent alienations or incumbrances to defeat a just demand." Houck, Liens, secs. 141, 142. What is said in this extract about a lien affecting prior incumbrances is probably not applicable to the claimant for a lien upon personal property.

In the case of Grant v. Whitwell, 9 Iowa, 156, 157, after speaking of the nature of a lien by judgment upon real estate, and showing that no alienation by the owner after the lien of the judgment attached could defeat such lien, the court say: "The same idea holds good of a mechanic's lien. He has it from the time of furnishing the work or materials, or putting them in the building. It rests upon the house and holds it so that it cannot be divested; but to enforce it and have the subject of it applied to his payment he brings his action. His lien is not then created, but it is judicially ascertained and declared, or, as it is termed, established. It existed before and rested upon the premises subject to his claim, and by the judgment is applied to his benefit. This is the notion of a lien, and it is only through such idea of it that it can hold property against other

exists in these statutory liens in which possession does not pass, that existed in those at common law when they were accompanied by possession."

In Taggard v. Buckmore, 42 Me. 81, it is said the lien referred to in the statute cannot be a general lien; the language forbids such construction; but in its character it is the same as a particular lien at common law. "The principle embraced in the statute is founded in natural justice, that the party who has enhanced the value of the property by incorporating therein his labor or materials shall have security on the same, though changed in form, and inseparable from the property." This was said of a lien for labor or materials furnished in the construction of a vessel.

The foregoing is sufficient to show the nature of a lien, and that the idea of lien excludes the idea that it can be divested, so long as it exists according to law, by any act of the general owner not assented to by the lien claimant.

As to the extent of the lien given by the statute above quoted to the laborer, there seems to me no room for doubt. The statute giving the lien declares that "it shall take precedence of all other claims or liens thereon." It seems to me that no more general words could have been used to exclude the idea that such lien should be subject to the claim of any subsequent purchaser who became such at any time before the claimant's right to enforce his lien had expired under the subsequent provisions of the act.

That the lien must date from the time of the commencement of the work, and not from the date of its completion, or from the date of the filing of the claim for a lien, is also very clear. The second section of ch. 319, Laws of 1882, says that no debt or demand for such labor shall remain such lien, unless a claim therefor be filed within the time prescribed in said section. The lien referred to in this section is the one mentioned in the first section of said chap

Smith vs. The Shell Lake Lumber Co., imp.

ter, which it is declared shall take precedence of all other claims and liens. The regulation in this second section for giving the notice, when the labor is performed between the 1st of November and the 1st of May following, clearly indicates that the claim, when filed as prescribed, shall make all the labor between those dates a lien if it has not been paid for. The lien must date from the time of the commencement of the labor performed, and covers all the work done between the stated periods, or at the time the work is completed, or when the claim is filed. It is clear from the language of the statute that the filing of the claim is not the date of the lien, as such construction is in conflict with the language used; and if it only attaches when the work is ended the statute would furnish no security at all for the labor performed, and might better be repealed. In the case of a mechanic's lien this court has repeatedly held that the lien of the workman or material-man dates from the commencement of the building, or of the repairs when the lien is for repairs, and takes precedence of all subsequent liens. Redmon v. Phoenix F. Ins. Co. 51 Wis. 302; Lampson v. Bowen, 41 Wis. 484; Hewett v. Currier, 63 Wis. 386; Hall v. Hinckley, 32 Wis. 365; Bryant v. Small, 35 Wis. 208, 209; McCoy v. Quick, 30 Wis. 521; Willer v. Bergenthal, 50 Wis. 474. And it seems to me that a like rule should be applied to the lien of the laborer on logs or lumber, and that his lien attaches at the time he commences work.

This court has always construed these statutes giving liens to laborers liberally, to effectuate the clear purpose of the legislation, viz., to secure the laborer pay for his wages out of the property which his labor has created or enhanced in value, which purpose the supreme court of Maine says is in accordance with natural justice. This court may not, perhaps, have expressly passed upon the question of the relative rights of the lien claimant and purchasers of the property upon which his work has been performed subse

Smith vs. The Shell Lake Lumber Co., imp.

quent to the performance of such work, but it has passed upon the question as to his right as against a person claiming by a prior title or lien, and has held in favor of the laborer's lien as against such claimants by prior title or lien.

In Paine v. Gill, 13 Wis. 561, this court said: "We have no doubt that it was the intention of the legislature to make this lien prior and superior to existing liens upon this kind of property. It is analogous in principle and reason to the case of repairs and improvements on personal property, when the law gives a lien upon the thing itself in favor of the mechanic or person who has laid out his labor or money in such improvements."

In Paine v. Woodworth, 15 Wis. 303, 304, it was again said: "The whole merits of the controversy depend upon the question whether, when a party has contracted with another party for the delivery of a lot of logs at a particular place, and for a prior lien on those logs as a security for a debt, such lien so contracted for cuts off the lien which the law gives the workman who performed the very work on the logs necessary to a fulfilment of the first contract. As we said before, we think it does not; but that it was the intention of the statute to give such workmen an absolute lien, when they were employed to do the work by any one having competent authority, as against everybody, upon the principle that the labor enhanced the value for the benefit of everybody who had any interest in the property."

In both the cases above cited the person for whom the claimant did the work in running the logs had sold the logs and received his pay therefor in full before the work was done, but before the logs were delivered under the contract, and under an agreement that the person to whom the logs were sold should have a lien on the logs for all moneys advanced on them before delivery. This case, it seems to me, presents full as great equities on the part of the prior purchaser as there can be in favor of a subsequent one. In

Smith vs. The Shell Lake Lumber Co., imp.

these cases the claim was not filed, nor the action to enforce the lien commenced, until after the logs had been paid for by and delivered to the purchaser. The circumstances. of the purchasing claimant were similar to those in the case at bar. He furnished the supplies and money to get out and deliver the logs as a part of the purchase money, the same as the appellant did in the case at bar. The law under which these cases were decided was sec. 12, ch. 153, R. S. 1858, which only gives the lien in the following general terms: "Any person or persons performing manual labor upon any land, timber, or lumber, for or on account of the owner, agent, or assignee thereof, may avail themselves of the foregoing provisions of this chapter, and upon complying with the requirements thereof shall have a like lien for the amount of work and labor performed, and the said lien may be carried into force and effect pursuant to the foregoing provisions of this chapter." The chapter relates to the mechanic's lien for the construction of houses, etc.

It seems to me very clear that the lien given by the said. section cannot be said to be more absolute or far reaching than the lien given by ch. 319, Laws of 1882. A like decision was made by the supreme court of Maine in Spofford v. True, 33 Me. 284. In this case it was held that the laborer's lien upon logs took preference of the lien of the former owner of the lands from which the timber was cut, and who had conveyed it to the person employing the laborer, without receiving his pay therefor, and with a reservation of a lien of five dollars per M. feet on all timber cut therefrom by his grantee, he being authorized to cut and remove the timber subject to such lien. In deciding this case the court say: "This laborer's lien takes away none of the rights of the owner, nor the one interested therein, by lien or otherwise, any further than is necessary for the security of those who are presumed to have added something to its value, equal to the expense, at least, incurred."