#### Elsner, Respondent, vs. Dorn, Respondent, and Hauck and another, Appellants.

*May 12*

June *5, 1908.*

*Homestead: Exemption: Mortgages: Foreclosure: Order of sate.*

1. The right to'have a homestead exempt from liability for debts is to he preferred in equity to the rights of creditors.

2. After defendant had established her homestead upon half of a lot owned by her, in a house built with money raised by a mortgage of the whole lot, contractors for the remodeling of a house on the other half lot obtained a mechanic’s lien upon such other half and bought it in at the sale on foreclosure of their lien. *Held,*that upon foreclosure of the mortgage on the whole lot the half so acquired by the contractors, which was not the homestead, was properly ordered to be sold first.

Appeal from a judgment of tbe circuit court for Milwaukee county: WarreN D. Tarrant, Circuit Judge.

*Affirmed.*

Tbe defendant *Augusta, Born*was tbe owner of a lot in tíre city of Milwaukee wbicb extended from Twenty-fourtb street to West Twenty-fourtb street in tbe block between Hadley and Center streets. Eor many years sbe bad occupied it as ber homestead, living in an old bouse wbicb stood on tbe balf of tbe premises fronting Twenty-fourtb street. Sbe entered into a contract with tbe defendants *Hauclc*and *Bartelt*for tbe erection of a bouse on tbe other balf of tbe premises, wbicb fronts on West Twenty-fourtb street, with the intention of occupying the same as ber homestead. This bouse was completed, accepted, and occupied, and paid for with money raised on, a mortgage executed by *Augusta Dorn*on the whole of the premises. Thereafter sbe entered into a contract with *Hauclc*and *Bartelt*to remodel and rebuild tbe old bouse fronting on Twenty-fourtb street. While tbe remodeling was being done trouble arose between tbe parties to tbe contract and *Hauclc*and *Bartelt*filed a mechanic’s lien against the balf of tbe premises fronting on Twenty-fourtb street. They obtained judgment against *Augusta Dorn,*and *74her interest in the half of the premises fronting on Twenty-fourth street was sold to them for less than the amount of the judgment, and a deficiency judgment was ordered in their favor. They thereafter completed and remodeled the old house without regard to the plans and specifications according to which the contract for remodeling and constructing the building had been made.

The instant action was commenced to foreclose the mortgage given by *Augusta, Dorn*on the whole premises. She answered, demanding that the part of the premises fronting on West Twenty-fourth street which she occupied and claimed as her homestead should be sold separately and last. The defendants *Hauclc*and *Bartelt*asked that this part of these premises should first be sold to satisfy the mortgage. The court found that the house and a part of the premises fronting on West Twenty-fourth street was the homestead of the mortgagor, and ordered that the other half of the premises should be first sold to satisfy the mortgage. This is an appeal by the defendants *Hauclc*and *Bartelt*from such judgment.

For the appellants the cause was submitted on the brief of *J. F. Griffin.*

*Adolph*Huebschmann, for the respondent *Dorn.*

SiebecKEr, *J.*

Appellants assert in effect that it is inequitable under the circumstances to sell first for satisfaction of the mortgage debt the portion of the premises not included in the mortgagor’s homestead. It is evident that when appellants’ lien arose the mortgagor, *Mrs.*Dorn, had established her homestead right to the premises she now occupies and that she was entitled to all the benefits that inhere in a homestead right. It has been held by this court that this right is superior in equity to that of creditors.

“The right of the owner to have his homestead exempt from liability in any form’ (R. S. sec. 2983) for his debts is superior to the equity of a creditor to have it applied to the *75payment of bis debt. However it may have been formerly and in tbe absence of a statute declaring bis right, it is now tbe settled policy of tbe law to prefer tbe homestead right as against tbe rights of creditors.” *Clancey v. Alme,*98 Wis. 229, 73 N. W. 1014.

Under tbe facts of this case tbe court properly adjudged that tbe portion of tbe mortgaged premises constituting tbe mortgagor’s homestead should not be sold or offered for sale until tbe other lands embraced in tbe judgment have been so offered and sold.

*By the Court.*— Judgment affirmed.