Smith vs. The Shell Lake Lumber Co., imp. ch. 153, R. S. 1858, was enforced as against a person holding a contract for the delivery of the logs to him as security for money advanced prior to the performance of the work and labor on them, on the principle that the labor was done for his benefit as much as for the benefit of the owner, and "for the benefit of everybody who had any interest in the property;" and such a case was likened to a sailor's lien for wages. "It follows the ship and its proceeds into whose hands soever they may come by title or purchase from the owner." That may be true of a sailor's lien for wages, but that remark was not applicable to the case. There was no title or purchase from the owner subsequent to the laborer's lien on the logs in the case. The claim was in the nature of the prior ownership of the logs. The case under consideration and the case of a seaman's lien upon the ship were the same in principle, however, in one most important respect. The person holding such a prior interest in the property has notice of the subsequent labor upon it to enhance its value, and the labor is for his benefit, and he is privy to the contract, express or implied. As to the seaman's lien for wages on the ship and proceeds, everybody has ample notice. The seamen are with and on the ship. They are inseparable until the seamen are paid and discharged. The seamen of previous voyages retain no lien after they have abandoned or left the service of that particular ship. A purchaser of the ship can readily inquire whether the seamen have been paid. He purchases with notice. It is evident that the question in this case has been presented to this court for the first time, and it is not without difficulty. The language of sec. 3329, R. S., in respect to such a lien, is, "which shall take precedence of all other claims or liens thereon." The natural interpretation of this language would seem to be, "all other existing claims or liens thereon." Jessup v. Stone, 13 Wis. 467. But, however that may be, it is certainly not broad or specific enough Smith vs. The Shell Lake Lumber Co., imp. to embrace the claim of a subsequent bona fide purchaser for value, in the usual course of trade, without notice. The language would have to be forced beyond its natural meaning to embrace such a case; and we do not think that the legislature intended such a meaning, for it has omitted to use the language to express it as against the well-known policy of the law governing the transfer of personal property, for the protection of bona fide purchasers in an open market for value without notice of prior claims thereon. This cardinal principle is as well expressed by Mr. Justice LYON, in Andrews v. Jenkins, 39 Wis. 476, as anywhere else: "It is too well settled to admit of argument or doubt that if the general owner of personal property, having possession thereof, sell and deliver to a person who has no notice, actual or constructive, that the property is incumbered, but who purchases it in good faith for value, such purchaser will hold the property discharged of any prior incumbrance. The defendants purchased the logs in controversy in the market, and paid for them the market price, without notice, either actual or constructive, that Andrews had or claimed any lien upon or interest in them." The paramount importance and incalculable value of personal property in these modern times makes its ready and easy transfer from hand to hand, and the protection of bona fide purchasers thereof, absolutely essential to our modern systems of trade and commerce. Secret trusts, liens, and incumbrances, and unknown and concealed claims and interests, in and upon personal property, and especially that kind of personal property that enters so largely into the general commerce of a country, would, if enforced by law, work the greatest injustice and be utterly destructive of the greatest financial interest that any country can have. As said in Webb v. Sharp, 13 Wall. 14, in respect to the claim of a subsequent purchaser without notice of the landlord's lien: "Goods sold in the ordinary course of trade undoubt Smith vs. The Shell Lake Lumber Co., imp. edly become discharged from the lien. Otherwise business could not be safely carried on." The same ruling in Fowler v. Rapley, 15 Wall. 328, and Beall v. White, 94 U. S. 386. Logs, timber, lumber, including boards, shingle, and lath, constitute most valuable and important articles of our trade and commerce, and are readily and necessarily and almost constantly being transferred and sold in wholesale and retail in open market, and carried and scattered over vast distances by land and water. This interest and trade are too vast and important to be clogged, impeded, and incumbered by secret liens, following them into all the distant markets of the land, to be enforced in violation of such a cardinal principal to facilitate and protect the sale of personal property. In view of these considerations and authorities, what is the true interpretation of our statutes giving to laborers thereon a lien upon logs, timber; and lumber? What is the object or purpose of filing a claim for such lien in the office of the clerk of the circuit court of the county unless it be for notice to somebody? In sec. 3341, R. S., it is called "the notice of such lien." This constructive notice would in most cases be the only notice a subsequent purchaser would be likely to have. If he has actual notice, or knowledge of such facts and circumstances as to imply it or to put him on inquiry of such liens, then he is not an innocent or bona fide purchaser as against them, and should not be protected, and will not be by a reasonable construction of the statute. The laborer, while he is working upon the logs, timber, or lumber, is protected by the notice inherent in this very act in connection with the article itself, equivalent to possession of it, as in common-law liens. After he has completed his labor upon it, he can at once file his claim and his protection will continue. It is not necessary that he should delay his remedy until the article has been removed and gone into the markets of the country and into the hands of many Smith vs. The Shell Lake Lumber Co., imp. subsequent purchasers for value and in good faith without any notice whatever of his claim. The proper meaning of the statute would seem to be that the laborer has a statutory lien for the value of his labor upon the logs or lumber from the time of its commencement. But it is a lien that he must claim in the way provided for, or he will be held to have waived it. He has a lien, no doubt, against all the world having actual or constructive notice of it. This would be consistent with the language: "No debt or demand for such labor or services shall remain such lien unless a claim therefor in writing shall be made," etc. This language is the only argument that the lien so attaches from the time of the labor or service as against subsequent purchasers without notice. In all other cases where the statute does not thus recognize the lien before filing the claim, the decisions are uniform, and it is admitted that such lien does not exist until the filing of the claim or petition. Kruse v. Thompson, 26 Minn. 424; Payne v. Wilson, 74 N. Y. 348. If this peculiar language of our statute can have force without violating the great principle and clear public policy of the law that protects bona fide purchasers in the usual course of trade for value without notice of the lien, then such should be its construction. If one purchase, before the filing of the claim, with notice that a certain person has worked upon the article to produce it and the time has not expired for the filing of his claim, it would seem proper that he should take notice of such a laborer's lien upon it. Or if he had been informed that a lien existed, or had such knowledge as to put him on inquiry of it and be bound to so inquire, he could scarcely be called a bona fide purchaser without notice. In this way the laborer can have ample protection of his lien without any infraction of, or violent exception to, the general law which protects subsequent bona fide purchasers without notice. Until the legis lature has seen fit to declare in explicit language that the Smith vs. The Shell Lake Lumber Co., imp. laborer in such cases shall have a lien paramount to the claim of such purchasers, upon a full consideration of the gravity of such an innovation upon the general law of the land made to facilitate and protect bona fide sales of personal property in the open market for value and without notice of such a secret lien upon it, we think this should be the interpretation of the statute. The supreme court of Michigan, under precisely the same statute as ours in this respect, held in AuSable River Boom Co. v. Sanborn, 36 Mich. 358, and subsequently in Haifley v. Haynes, 37 Mich. 538, that such a lien, until the claim therefor had been filed, did not exist as against a subsequent purchaser of the logs in good faith and without notice. I should have done better to have quoted the reasons given in these cases for so holding than to have attempted originality, and may be permitted to quote briefly therefrom in addition to what has already been quite tediously expressed. That court said: "It is plain that justice and policy, as well as precedent, require a rigid construction of this statute, to hinder its operation, so far as may be, against valuable rights, and especially where a contrary view would imperil the rights and interests of innocent third parties." It may be proper to say that since these decisions the legislature of that state has amended the statute by an express proviso that any sale or transfer of the logs, timber, etc., during the time limited for the filing of such statement of lien, and previous to the filing thereof, shall in no way affect such lien. Whether this is a safe and judicious precedent to be followed in this state is with our own legislature. The laborer's lien should, of course, be protected as far as possible without inflicting too much loss and damage upon interests paramount by reason of their magnitude and their general bearing upon the trade and commerce of the country. It is to be presumed that he does not seek protection which would result in wrong and injustice to other VOL. 68-7 |