
    Rice and another vs. Lucy Hall, imp.
    Mechanic’s Lies Suit: Parties: Pleading.
    
    1. A subsequent purchaser or incumbrancer is a proper party to an action brought to enforce a specific hen for materials and labor.
    2. Hie complaint alleges that plaintiffs furnished to the defendants machinery of a certain value, used in repairing' a certain mill; that such machinery was furnished at the request of J. H., and a portion of it .at the request and upon the express orders of L. H.; that said mill then was and still is occupied by J. H., and “ owned by one or both of said defendants in common or otherwise;” that L. H. claims some interest in or title to the lot on which the mill is situated; and that plaintiffs are not able to state what her precise interest or title is, but claim that, whatever it may be, it is subordinate to their hen. The complaint states the substance of the petition for a hen, and the date of its filing in the proper office; and demands a personal judgment against J. H. (but not against L. H.), and also that the amount claimed be adjudged a hen upon the mill, building, machinery and fixtures, taking precedence of any interest of L. H. therein, and that the premises be sold, etc. Held, that upon the facts here alleged, L. H. is properly made a party defendant to the action, as a subsequent purchaser or incumbrancer.
    APPEAL from tbe Circuit Court for Portage County.
    The complaint in tbis action alleges that the plaintiffs, at the times when their claims therein set forth accrued, were foundrymen and manufacturers and repairers of steam engines, etc.; that as such, at the special instance and request of the defendant James Hall, “and in part at the request of the said [defendant] Lucy Hall” between December 12, 1874, and April 6, 1875, they made, sold and delivered “to the said defendants,” a large quantity of machinery, mill gearing and repairs, “for a steam saw-mill and shingle-mill then and still occupied by the said J ames Hall, and then and still owned by one or both of said defendants as tenants in common or otherwise;” said machinery, etc., being of the value of $167.52, of which only $22.88 had been paid, leaving justly due thereon $144.64, with interest, in consideration whereof said James Hall promised the plaintiff to pay him the sum so remaining due and unpaid wben be should be thereunto afterwards requested; that after the delivery and acceptance of the said machinery, etc., “plaintiffs demanded of said James Hall payment therefor, but'the same was then and there refused;” that said machinery, etc., was furnished for and used in the repairing of the aforesaid steam saw-mill, situated on “lot number 6 ” in a certain described section of land in said county; that for the purpose of securing their lien upon said premises for the sum above mentioned, plaintiffs filed their petition in the office of the clerk of the circuit court for said county, on the 23d of June, 1.875, as provided by law, and on the 10th of July following filed with said clerk an amended petition for a lien on said premises for said sum, “ setting forth in substance the performance of said work and labor, and the sale and delivery of said machinery, as hereinbefore stated, and that the same was used in the repairing of the said steam mill, the sum remaining due thereon, with a description of the said premises, and claiming a lien for the sum due as aforesaid; ” and that the claim referred to and set forth in said petition is the same claim or demand set up in this complaint.
    The complaint then avers that said Imcy Hall “ claims some interest in or title to the said lot number six, but what her precise interest or title is, plaintiffs are not able to state, but charge that, whatever the same may be, it is subordinate to the claims of the plaintiffs herein before stated;” that the said Lucy is a sister of the defendant James Hall, and was residing upon or near the said premises, with the said James, at the time the said mill was being repaired, and the said machinery was being furnished by the plaintiffs and put in the mill, and had knowledge that plaintiffs were manufacturing and furnishing it for the mill, and that the same was used in said mill with her knowledge and consent; and that a portion of said machinery, etc., was furnished and delivered to be used in repairing and refitting said mill upon the express order of the said Lucy.
    
    
      Prayer, for a judgment against James Hall for tbe sum alleged to be due, with interest and tbe costs of tbe action, “ and that tbe same may be adjudged a lien upon and against said steam mill building, machinery and fixtures tbereon; and that tbe same may take precedence of any interest, claim or title that tbe said Luey may have therein; and that the same premises described in tbe said amended petition may be sold,” etc. "With the summons and complaint, tbe plaintiffs served upon Luoy Hall a notice that the object of tbe action' was to enforce a mechanic’s lien for $144.64, “ against tbe steam sawmill occupied by the defendant James Hall, and situated upon lot six” in tbe section of land aforesaid, and that no personal claim was made against her.
    
      Racy Hall demurred to tbe complaint as not stating a cause of action against her; and appealed from an order overruling her demurrer.
    Tbe cause was submitted on tbe briefs of James 0. Raymond for tbe appellant, and H. W. Lee for tbe respondent.
    Tbe appellant’s counsel argued, as in tbe preceding case, that a mechanic’s lien cannot be enforced against tbe property of any person other than tbe debtor, and that therefore tbe complaint fails to state a cause of action against tbe appellant.
    Eor tbe respondent it was contended,
    that tbe averments of tbe complaint show, and were intended to show, that tbe appellant was one of tbe contracting parties, and that part of tbe goods were furnished to her, on her responsibility. If the value of that portion of tbe goods so furnished is not stated, and if tbe appellant desired further particulars in relation thereto, her remedy was by a motion to make more definite and certain. Learmonth v. Veeder, 11 "Wis., 138; Baxter v. The State, 9 id., 39. It is also alleged that tbe mill was occupied by James Hall, and was then and still is owned by one or both of the defendants, as tenants in common or otherwise; and it is further alleged that tbe appellant claims some interest in or title to the lot upon which tbe mill is situate, and that plaintiffs are not able to state tbe precise character of such interest, but claim that it is subject to their lien. On these averments it appears that a cause of action is claimed against the appellant on two grounds: 1. Because she was one of the contracting parties; and 2.' Because she has or claims an interest in the premises. The fact that the plaintiffs do not seek a personal judgment against the appellant, as they might have done upon these allegations, does not affect their right to a lien ujton her interest in the premises.
   LyoN, J.

This is an action to enforce a lien upon the dame premises described in the complaint in Wheeler v. Hall (ante, p. 447), for the price of certain machinery furnished by the plaintiffs (who are foundrymen), and used in erecting and repairing the mills on such premises. As in that case, this appeal is from an order of the circuit court overruling a general demurrer to the complaint, interposed by the defendant Luey Hall. The only question to be determined is, whether the complaint states facts sufficient to constitute a cause of action against the appellant.

It is alleged in the complaint that a portion of the machinery was furnished at the request of the defendant James Hall, and a portion at the request and upon the express orders of the appellant; also that the premises upon which a lien is claimed, were when the machinery was furnished, and still are, occupied by James Hall, and were then and are still “ owned by one or both of said defendants in common or otherwise;” and that the appellant claims some interest in or title to a part of the premises, “ but what her precise interest or title is, the plaintiffs are not able to state, but claim that whatever the same may be, it is subordinate to the claims of the plaintiffs,” as stated in the complaint. The substance of the petition for a lien, and the date of the filing thereof in the proper office, are stated in the complaint. There is no demand for a personal judgment against the appellant.

As we understand the complaint, it substantially avers that the appellant acquired an interest in the premises upon which the plaintiffs seek to enforce a lien, after their right to such lien attached, and hence, that her interest is subordinate or subject to their claim. Were this air action to foreclose a mortgage executed and recorded before the appellant acquired an interest in the premises, there is no doubt she would be a proper party defendant to the action. Why is she not a proper party defendant in this action to enforce a specific lien? Unless made a party in the lien action, the purchaser at the execution sale might be driven to an action against her to perfect his title. It is manifestly for the benefit of all parties that the rights of all persons claiming an interest in the premises subsequent to the lien be settled in the action to enforce the lien. Surely it is to the advantage of those claiming such interest to be made parties in the lien suit, for it gives them an early opportunity to contest the amount of the lien, and enables them to ascertain the extent of the incum-brances to which their interest is subject. In short,'the reasons for making a subsequent purchaser or incumbrancer a party defendant to a foreclosure action, apply with equal force to an action like this.

But further discussion is unnecessary. The question was settled by this court in McCoy v. Quick, 30 Wis., 521. It is there held that a subsequent purchaser or incumbrancer is a proper party to an action brought to enforce a specific lien for materials and labor. See also Hall v. Hinckley, 32 id., 362. We have no doubt the ruling is sound in principle.

We conclude that the complaint states facts which show that the appellant, although not absolutely a necessary party, is a proper party to the action, and hence, that the demurrer thereto was properly overruled.

By the Court. — Order affirmed.  