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was paid out of said $12,000 the sum of $3,010 to the holder and owner of the previously existing mortgage on said premises, in full payment of the principal sum thereof and interest thereupon, and said previously existing mortgage was satisfied and canceled of record; that the corporation employed Keller & Son 216 to remove the two dwelling-houses situated on the premises, and to do certain work of remodeling, repairing, and refitting said dwelling-houses when they should be so removed, and that such work was commenced May 18, 1893, and not before; that the corporation engaged the plaintiff and the several other defendants for the performance of certain work and labor, and the furnishing of certain materials, in and about the erection and construction of the church building on said real estate, which work and labor were performed and which materials were furnished as therein stated; that the construction and erection of said church building was commenced May 19, 1893, and not before, and no work was done in or about the erection or construction of said church building upon said real estate before May 19, 1893; that all of said sum of $12,000 was, upon the order of the corporation, paid by Weil to the contractors, laborers, and materialmen for work and labor performed and materials furnished in and about the removing, remodeling, and repairing of said two dwelling-houses on said real estate, and in and about the erection. and construction of said church building on said real estate, except $258.65 and the sum of $3,010 so paid in discharge of the previously existing mortgage thereon; that said two mortgages were each duly recorded May 20, 1893; that Mann is still the lawful holder and owner of said notes and mortgages, and no part thereof has been paid, except the interest accruing on and before May 17, 1895; that Keller & Son had a lien thereon for $1,847.42, commencing May 18, 1893; that the plaintiff had a lien thereon for $137.94, commencing May 24, 1893; that the defendant William Grether had a lien thereon for $803.77, commencing May 19, 1893; that the defendants Biersach & Niedermeyer had a lien. thereon for $354.52, commencing May 19, 1893; that the defendant Charles H. Koehler had a lien thereon for $303.40, commencing May 24, 1893.

And as conclusions of law the referee found that said several 217 liens for labor and materials attached May 18, 19, and 24, 1893, as found; that said mortgages became and constituted a lien upon said real estate, and attached thereto as such lien, May 17, 1893, and became at such time a lien thereupon to the amount of $12,000 and the interest subsequently accruing thereon; that

AM. ST. REP. VOL. LXV-4

such liens of said mortgages originated from the time of their execution and delivery, May 17, 1893, and originated and took entire effect as a lien upon said real estate before the commencement of the work of removing, remodeling, and repairing said dwelling-houses, and before the commencement, erection, or construction of said church building, and constituted a lien upon said real estate prior and superior to any and all of the liens for work or labor done or materials furnished, adjudged therein to the parties to this action.

The trial court ordered that the findings of fact made and reported by the referee be, and the same thereby were, confirmed and adopted as the findings of the court herein, and that each and all of the exceptions thereto be overruled; but the court differed with the referee only in the conclusions of law upon the findings of fact reported by him. The court was of the opinion that, as to the mechanic's lien claims, the lien of the mortgages attached to the real estate May 20, 1893, when the mortgages were recorded, instead of attaching thereto at the day of their delivery, and modified the conclusions of the referee accordingly, and ordered that such mechanics' liens be adjudged prior and superior to the liens of said mortgages; and that in all other respects said conclusions of law reported by said referee be, and the same thereby were, confirmed. Judgment was ordered to be entered thereon accordingly. From those portions of the judg ment so entered thereon which are adverse to the defendant David S. Mann, he brings this appeal.

There is no question but that the mortgages were both properly executed and delivered by the corporation to the 218 appellant Mann, May 17, 1893. They were conveyances, within the meaning of the statutes, and had the effect of conveying "the land therein described, together with all the rights, privileges, and appurtenances thereunto belonging, in pledge to the mortgagee, his heirs, assigns, and legal representatives, for the payment of the indebtedness therein" and thereby secured: Rev. Stats., secs. 2203, 2209, 2242. The only effect of such failure of Mann to record his mortgages for three days after they were executed and delivered to him was the liability of having the same become "void as against any subsequent purchaser in good faith, and for a valuable consideration, of the same real estate, or any portion thereof, whose conveyance" should first be duly recorded: Rev. Stats., sec. 2241. Manifestly, none of the parties here claiming liens for labor performed and materials furnished are subsequent purchasers in good faith and for a valuable considera

tion, within the meaning of this statute: Butler v. Bank of Mazeppa, 94 Wis. 351. The statute giving the liens to such laborers and materialmen is very plain, and cannot well be misunderstood. It is to the effect that such lien claimants shall have a lien upon such building, and upon the interest of the owner thereof in and to the land upon which the same is situated, and "such lien shall be prior to any other lien which originates subsequent to the commencement of the construction" of such building: Sanborn and Berryman's Annotated Statutes, sec. 3314. The mortgages in question were both executed and delivered, and the money for the repayment of which they were given to secure, and the whole thereof, was actually advanced prior to the commencement of the construction of the church building, and hence the liens for such labor and materials were necessarily subject to the liens of the mortgages. The language of the statute giving such liens will admit of no other construction, and the authorities on the subject are to the same effect: Rees v. Ludington, 13 Wis. 276; 80 Am. Dec. 741; Jessup v. Stone, 13 Wis. 466; Wisconsin Planing Mill Co. v. Schuda, 72 219 Wis. 277. A learned author on such liens says: "Recording is not necessary to give the mortgage priority of such lien under recording acts which make the recording necessary only as against subsequent purchasers and mortgagees. Thus, where a mechanic's lien attaches to property by the commencement of work upon the premises after the execution of a mortgage, but before the recording of it, the mortgage is superior, by virtue of the prior execution": 2 Jones on Liens, 2d ed., sec. 1460. This language is applicable to our statutes. The judgment, under our statute, is only upon "the interest of the owner in the premises at the time of the commencement of the construction of the building": Sanborn and Berryman's Annotated Statutes, sec. 3324.

By the Court. The portions of the judgment of the circuit court which Mann appeals from are reversed, and the cause is remanded for further proceedings in accordance with this opinion.

MECHANICS' LIENS-CONFLICT WITH UNRECORDED ENCUMBRANCES.-Mechanic's lien holders are not purchasers, and must at their peril, take notice of all liens, and encumbrances, whether recorded or not: Nashua Trust Co. v. Edwards Mfg. Co., 99 Iowa, 109; 61 Am. St. Rep. 226, and note. A mechanic's lien begins when the work is commenced or the materials furnished: Note to Vilas v. McDonough Mfg. Co., 51 Am. St. Rep. 932; and is paramount to the lien of a mortgage executed after the building was

commenced, but before such labor or material was furnished: Haxtun etc. Heater Co. v. Gordon, 2 N. Dak. 246; 33 Am. St. Rep. 776, and note. A lien or mortgage existing at "the inception" of a mechanic's lien is protected: Oriental Hotel Co. v. Griffiths, 88 Tex. 574; 53 Am. St. Rep. 790. Compare Farmers' Bank v. Winslow, 3 Minn. 86; 74 Am. Dec. 740.

IN RE WILL OF LYON.

[96 WISCONSIN, 339.]

WILLS-ATTESTING WITNESS.-THE WIFE OF AN EXECUTOR of a will is a competent attesting witness thereto.

WILLS-MARRIAGE-REVOCATION BY.-The marriage of a woman does not revoke her will, if her common-law disabilities in respect to the disposition of her property have been removed by statute.

Gertrude S. Cole, a widow, made her will, devising her estate to Alice A. Sully and Clary A. Sully. She appointed G. C. Cole her executor, and his wife signed the will as an attesting witness. The testatrix afterward married one Lyon, and thereafter died without issue. Her husband contested the probate of the will. Judgment was rendered against him, and he appealed.

P. T. Krez, for the appellant.

W. C. Cole and F. Williams, for the respondent.

340 MARSHALL, J. It is assigned as error for a reversal of the judgment that the trial court should have held the wife of the executor not a competent attesting witness and the will void on that account. The executor was not beneficially interested so as to affect the competency of the wife to testify either by common law or by statute: See Redfield on Wills, 257, 259; Millay v. Wiley, 46 Me. 230; Cassoday on Wills, secs. 190, 192; Bettison v. Bromley, 12 East, 250. She was competent to testify to the facts at the time the will was executed, and that satisfies the universal test: Cassoday on Wills, sec. 177; Schouler on Wills, sec. 351; In re Holt's Will, 56 Minn. 33; 45 Am. St. Rep. 434. The question is one that has been so long settled that no extensive discussion of the subject seems to be warranted.

It is further assigned as error that the court should have decided that the subsequent marriage of the testatrix revoked the will by operation of law. Section 2290 of the Revised Statutes provides, in effect, that wills may be revoked, by implication of law, by subsequent changes in the condition or circumstances of the testator. That merely preserves the common-law rule on the

subject, except as abrogated by implication in the manner hereafter stated. At common law, the marriage of a woman revoked her will previously made, but such rule is generally (there are exceptions) held to have been changed by the statutory removal of her disabilities in respect to the disposition of her property: Noyes v. Southworth, 55 Mich. 173; 54 Am. Rep. 359; Roane v. Hollingshead, 76 Md. 369; 35 Am. St. Rep. 438; In re Hunt, 81, Me. 275; Morton v. Onion, 45 Vt. 152-cited 341 by respondent's counsel. Also, In re Tuller's Will, 79 Ill. 99; 22 Am. Rep., 164; Fellows v. Allen, 60 N. H. 439; 49 Am. Rep. 328; Hoitt v. Hoitt, 63 N. H. 475; 56 Am. Rep. 530. Formerly, the marriage of a man after the making of a will, and the birth of issue, by operation of law revoked the will. The inequality between the sexes in this regard grew wholly out of the change that marriage worked in the capacity of the woman to dispose of her property. Upon that being removed by statute in this and many other states, the inequality in the rule, as a necessary and natural result, ceased.

Though the authorities are not all one way, they greatly preponderate in favor of the views above expressed. Moreover, the subject is not open to discussion here, the point having been decided in Ward's Will, 70 Wis. 251, 5 Am. St. Rep. 174, where it is said, in effect, that, the statutes of this state having conferred upon married women the absolute power of disposing of their property by last will and testament without the consent of their husbands (Rev. Stats., secs. 2277, 2281), that removed every reason upon which the common-law rule of revocation by marriage subsequent to the making of will was based; hence such rule was, by implication, removed by the same statute. To be sure, in the case of Ward's will, the fact was that the testatrix had children by a former husband, and the court reserved the question of whether, in the absence of children, the commonlaw rule would not prevail, inasmuch as the husband is, under our statutes, heir of his wife, as well as the wife of the husband; but we do not think the statute in relation to inheritance makes any difference. The inequality formerly existing grew out, as stated, of the inequality in the capacity of the sexes to dispose of their property after marriage. That has been removed by a change in the capacity of the wife; hence the common-law rule as to the husband remains, and that of the wife has been changed by implication to conform to it.

In England and many of the states this whole subject is now regulated expressly by statute to the effect that marriage subse

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