Charmley v. Charmley, 125 Wis. 297. 95 N. W. 652; Walker v. Vaudry, 4 Rob. (La.) 395; Sheldon, Subrogation, § 110; Harris, Subrogation, § 841. Το enable a person to see what interest one has in the property of another by the right of subrogation he must look at the matter from the viewpoint of the original owner before the devolution. Harris at the section above cited, using Walker v. Vaudry, supra, as an illustration, says: "Plaintiff being subrogated, as he was, to all the rights of A., can have and exercise no greater rights than he had. is a cardinal principle in all cases of subrogation." The court said in the illustrative case: This "Howe, who had obtained his judgment against Vaudry on the 16th day of December, 1840, could not have brought a revocatory action against him on the 31st day of October, 1842. It is equally clear, that if Howe could not do it, Walker cannot; for a person subrogated to the rights of another, cannot have any other or greater rights than the latter had." In Boevink v. Christiaanse, supra, the court pointed out distinction between the operation of the statute of limitations where there is the mere right of subrogation to the interest of a mortgagee in property and where there is a legal claim with the equitable right by the law of subrogation to use a mortgage lien, though extinguished as to the mortgagee, as an aid to the enforcement of such claim. It was said that in the latter case the right to enforce the security will in no event survive, as regards the statute of limitations, the right to enforce the claim, and in the former that it will not survive the limitation period upon the cause of action to enforce the security itself, measuring from the maturity of such security. In that instance there was a mortgage with the equitable right to enforce the lien, obtained as in this case, and it was held that the cause of action, in that regard, dated from the maturity of the mortgage. Charmley v. Charmley, 125 Wis. 297. We must distinguish not only between a cause of action to enforce a security by right of subrogation in aid of realizing on a legal claim, and such a case where there is no such claim, but between a cause of action based on the security and the cause of action to enforce it. The situation is similar to where a person sues in behalf of himself and others to enforce a cause of action existing in favor of a third person in which the plaintiff and his associates have an interest that can only adequately be thus protected. The cause of action to be enforced is one thing, the cause of action to enforce it is another; neither can survive the death of the other. So it will be seen that the limitation period upon the enforcement of the mortgage paid off by respondent expired long before her claim was filed in the proceedings to settle her husband's estate and long before his death, unless her rights in that regard were saved by the exception in favor of married. women, as regards the statute of limitations. The fact that she made the payment in 1870, because of a threatened foreclosure, shows that the mortgage had previously matured, and that the cause of action thus created, so far as it could be deemed alive at all, was some thirty years old at the time of the commencement of this proceeding. The life of such a cause of action is limited to twenty years. Sec. 4220, Stats. 1898. The respondent here, if she could recover at all, could only do so in the right of the mortgagor to whom she made the payment. The only cause of action which arose upon the making of such payment was one to enforce the cause of action upon the mortgage possessed by the mortgagee at the time of payment. Obviously, had the mortgage not been paid off, the mortgagee could not have enforced it at the time this action was commenced. The limit of his right under such circumstances was the limit of respondent's, because since the statute of limitations had commenced running against the mortgage before she became the equitable owner of the lien, Halsey v. Waukesha Springs S. Co. 125 Wis. 311. such devolution did not interrupt its running. As we have said, where once the statute of limitations has commenced to run on a cause of action, no circumstances not expressly provided by statute-and we have no statute applying to the circumstances here will interrupt it. Wood, Limitations (3d ed.) sec. 6. "The course of decisions, both in England and in this country, has established the rule beyond doubt, that when the statute of limitations has commenced running [save as otherwise provided by the written law], it runs over all subsequent disabilities and intermediate acts and events." "Nor is there any difference between a voluntary and involuntary disability." Dekay v. Darrah's Adm'rs, 14 N. J. Law, 288. So in any way we can view this case the respondent had no cause of action when she filed her claim. By the Court. The judgment is reversed, and the cause remanded with directions to render judgment in favor of appellant. HALSEY, Appellant, vs. WAUKESHA SPRINGS SANITARIUM COMPANY and another, Respondents. May 3-June 23, 1905. Building contracts: Architects: Conditions precedent: Mechanics' liens: Description of premises: Destruction of building: Enforcement of lien. 1. Where complete performance of an entire contract to do work upon a building to be supplied by the owner or his employee is prevented by the total destruction of that building, such completion is excused, and the contractor may recover pay at the contract price for the portion of the work done. 2. An agreement that an architect's certificate shall be a condition precedent to a contractor's right to payment is deemed and construed to embody the condition that the architect shall exercise his function as arbitrator honestly and in good faith. Halsey v. Waukesha Springs S. Co. 125 Wis. 311. 3. One who performs his contract may recover his pay therefor, notwithstanding an agreement that a specific architect's certificate shall be a condition precedent to payment, if it appear that he is disabled from obtaining the architect's certificate by collusive, fraudulent, arbitrary, or unreasonable refusal by the architect, or if the issuing of the certificate is prevented by act of the owner. 4. Where, after a contractor had nearly completed the plumbing work on a building in process of construction and repair by the owner, the building was destroyed by fire, and, upon presentation of the contractor's final bill to the architect, whose certificate was stipulated to be a condition precedent to payment, the architect assured the contractor that his work was all satisfactory except in a few unimportant details, but refused to give him a certificate, such conduct of the architect is arbitrary and unjust, and, in the legal sense, fraudulent. 5. In such case, the fact that the owner had by withdrawal of the contract from the architect disabled him from exercising his function, while it might absolve the architect from any conscious or intentional wrong or fraud against the contractor, yet, being the act of the owner preventing the issue of a certificate, it excused the contractor from producing the architect's certificate. 6. Where a claim for a mechanic's lien and the complaint in an action to foreclose the same described a twelve-acre tract as that on which the lien was demanded, while the evidence showed that only one acre thereof could be so subject, the statutory requirement of a claim for lien describing the land is satisfied. 7. In such case it is the duty of the trial court to ascertain, by proof, one acre within the tract so claimed which should contain the building and be subjected to the lien. 8. Where a mechanic's lien has once attached to land it is not detached by the destruction of the building which the owner has impliedly contracted should remain in existence to enable the lien claimant to complete his contract. APPEAL from a judgment of the circuit court for Waukesha County: JAMES J. DICK, Circuit Judge. Reversed. In 1901 the respondent, having in process of construction and repair a building, entered into contract with the appellant to do and furnish the plumbing work and material thereon to an amount of $4,000, according to certain specifications. That contract contained the usual clauses, naming Halsey v. Waukesha Springs S. Co. 125 Wis. 311. an architect to act as agent of the owner, requiring the performance of the contract to his satisfaction, that he should be final arbitrator, and that the contract price, as also the price of any extras, should be paid on certificates from the superintendent at the rate of eighty-five per cent. of the work; the remaining fifteen per cent. to be held as security for completion of the work, and to be paid or applied under the direction of the superintendent. After the building was nearly completed and appellant had performed all the contract work except about $228, besides some $1,300 of extra work, the building burned down, by accident, on December 2, 1901, so as to render the completion of plaintiff's contract impossible. His work up to about November 20th had been approved from time to time, and certificates issued for eighty-five per cent. thereof, and duly paid. After the fire a bill for the total was presented to the architect, who refused to pass upon it in any way, saying that plaintiff must deal with the managing officer of the company, and thereafter persisted in such refusal, although he testified upon the trial that all of the work done accorded with the contract, with exception of a mixing table rejected as not satisfying specifications, and that the extras were satisfactory. This action was brought to enforce a mechanic's lien for the price of the extras and the amount of the contract, less the value of the parts thereof which had not been performed at the time of the fire, aggregating about $78. The answer claimed additional remission in the sum of $175 for one sink entirely omitted and for said mixing table. The claim for lien and the complaint both demanded a lien upon a twelve-acre tract, correctly described, upon which the building was situated. It appeared, however, that the premises were within a city, and some attempts were made to amend the claim and complaint so as to describe a specific acre within said twelve. The last attempt, seeking to make such description by metes and bounds, was made after decision but before judgment, and was denied by the court. The court held that |