Karger v. Steele-Wedeles Co.

79 N.W. 216, 103 Wis. 286, 1899 Wisc. LEXIS 169

• Court: Wisconsin Supreme Court
• Decided: May 16, 1899
• Status: Published

Opinion

Winslow, J.

This is an action of foreclosure of a real-estate mortgage, and the question presented is whether an attachment lien takes precedence of a prior mortgage upon the property, executed and delivered in good faith, but not recorded until after the levy of the attachment and filing of the certificate of attachment. The trial court held that the mortgage lien was prior to the attachment lien, and this-conclusion was undoubtedly correct. The rule is thus correctly stated in 1 Wade, Attachment, § 253: “The attachment only operates as a lien upon the interest in the premises-which the debtor has at the time of the levy. This is the general rule, and is only varied by statutes which give the-attaching creditor the same standing as subsequent purchasers without notice.” See, also, Drake, Attachment (7th ed.),. § 234

Our recording act only protects a “ subsequent purchaser in good faith and for a valuable consideration,” who first, records his conveyance, from the effect of a prior unrecorded conveyance, and does not extend to attaching creditors.. Stats. 1898, secs. 2241, 2242. The same principle has been applied to a mechanic’s lien in this state. Mathwig v. Mann, 96 Wis. 213.

By the Oourt.— Judgment affirmed.