The learned counsel for the appellants has presented to this court a very able argument upon the question of the priority of the appellants’ claim as purchasers at the execution sale, over the claim of the respondents as mortgagees, admitting that their mortgage was a valid, subsisting mortgage upon the premises, and was intended to-cover the lands in question in this action. His claim is that as the appellants had no knowledge of the existence of the mortgage now claimed to be a mortgage covering the lands in question, at the time of the sale of the lands upon the judgment in their favor, they, as purchasers upon such exe*239cution sale, should in equity be protected against the claim of the respondents that it was intended that their mortgage should cover the lands in dispute, and that a court of equity ought not to reform the mortgage so as. to. make it a prior' claim to theirs as purchasers at the execution sale. He has. also strongly attacked the finding of the court that the. mortgage was not fully paid, satisfied, and canceled long-before the commencement of this action; but as we have come to the conclusion that the third finding of fact, viz., that the said premises at the time of the execution of said mortgage, and of the deed to the said respondents, were the homestead of Samuel Livesley and Margaret Livesley, and that in consequence thereof the judgment of the said appellants was not and could not be a lien upon said premises, and that said deed and mortgage were not, nor was either of them, executed for any fraudulent or improper purpose, the-question as to'whether the note and mortgage were paid and satisfied becomes of no importance to the appellants, as their claim would be cut off aby the deed to the trustees, in any event, if such deed be not set aside as fraudulent. "We deem it unnecessary, therefore, to review the finding of the court upon that question, as we are clearly of the opinion that the appellants have no rights which can be prejudiced by foreclosure and sale under that mortgage.
It is apparent that if the land in question in this case was. the homestead of the mortgagors and grantors when the mortgage and deed were made, the appellants could have no-claim on the same as judgment creditors- at the time of such mortgaging or sale. And if it be alléged or claimed that the judgment became a lien after the conveyance of the said lands to the trustees for the benefit of the wife, and after it had been abandoned as a homestead by both husband and wife, the evidence should clearly show that the transfer to-the trustees was merely colorable, and made for the purpose-of enabling the husband to have the advantage of another-*240homestead, while in. fact holding the old homestead, through the intervention of these trustees, for his sole use and benefit. Carhart v. Harshaw, 45 Wis., 340-347. The court has found, upon the question of fraudulent intent in making this conveyance to the trustees, against the appellants, and we find nothing 'in the evidence which would justify us in reversing such finding.
It was 'said by the learned counsel for the appellants that the question as to whether the premises were a homestead at the time of docketing their judgment, and at the time of making the conveyance to the trustees, was only incidentally put in issue upon the trial, and that their rights ought not to be concluded by the finding of the court upon that question. The answer, however, shows that the appellants considered that a material question in their defense, as they expressly allege that it was not a homestead at the time of the docketing of their judgment, and they also allege that their judgment became a lien upon the land at the time of docketing said judgment. It cannot be said that upon these pleadings the appellants were not expecting that the question of homestead would be a question for trial in the action. The question was very material, as bearing upon the rights of the appellants, and was, in fact, litigated on the trial, and the court has found that the lands in controversy were the homestead of Livesley and wife both at the time the appellants’ judgment was docketed and at the time the deed was made to the trustees. That they were the homestead of the Lives-leys at the time the judgment of appellants was docketed in Sauk county, is, we think, very fully sustained by the evidence in the case; and, so far as there is any proof on the subject, the evidence sustains the finding that such homestead right continued until after the deed was made on the 14th of June, 1813.
The evidence is very clear that on the 20th day of May, 1872, the land in question was occupied by Livesley and wife *241as their homestead, and at that time they were not the owners of any other lands. It seems that some time after that date, but at what particular time the evidence does not show, Livesley purchased another piece of land, and he testifies that he continued to occupy the land in dispute, and lived on it one season after he had purchased the other land. In another place in his testimony he says: “ I lived on the land when the note was paid and the land conveyed to the trustees. It was my homestead long after that.” Again he uses the following language: “ I did not, in the fall of 1872, leave what' I call my homestead and go on to the other farm to live. I don’t think we did. I cannot speak definitely. I never tried to keep myself posted about it.” We think this testimony is quite sufficient to sustain the finding that the lands in question remained the homestead of the Lives-leys as late as June 14, 1873, when the deed to the trustees was made. The evidence is conclusive that not long previous to that date it was such homestead, and all the evidence there is in the case tends strongly to prove that its possession as a homestead was continued until after the giving of the deed to the trustees. Upon the evidence in the case, the court would not have been justified in finding that its possession. as a homestead had ceased before the deed was made.
It was necessary for the appellants to prove affirmatively that their judgment was a lien upon the lands at the time the conveyance was made to the trustees. The proof shows beyond any reasonable doubt that the judgment was not a lien when it was docketed, in December, 1872, and there is a want of proof to establish the fact that it became a lien before June 14, 1873, when the owners undertook to convey it to the trustees. There being no fraud in the intended conveyance to the trustees, and the appellants having no lien upon the lands at the time such intended conveyance was made, a court of equity properly- corrected the conveyance so as to carry out .the intent of the parties as against, these *242parties. At the time this action was commenced neither party had a conveyance of the lands in dispute which could have been recorded under the registry act, and neither can invoke its provisions as a protection of his claim against the other.
In the absence of any fraud on the part of the respondents, their equitable claim, being prior in time to the claim of the defendants, must prevail. The rule seems to be firmly established, as will appear from an examination of the authorities cited by the learned counsel for the respondents in their brief; and notwithstanding the very able argument made by the learned counsel for the appellants against the enforcement of this rule, he has been unable to cite us to any case in which a different rule has been established. The judgment of the court below upon the merits of the controversy was correct and should be affirmed.
We think the circuit court erred in charging all the costs of the plaintiffs in the action to these defendants. The plaintiffs would have béen compelled to incur a large share of the costs taxed against these defendants, although they had not appeared in the case and made a defense. There was no justice in charging them with costs jn the action which were not incurred by the plaintiffs by reason of their defense. Instead of adjudging that these defendants should pay the taxable costs of the action, the judgment should have directed that the plaintiffs recover of these defendants such costs as were incurred by the plaintiffs in the action by reason of their defense, and which they would not have otherwise incurred.
By the Court.— The judgment of the circuit court, granting the plaintiffs relief as prayed for in their complaint, is affirmed, except as to costs; and so much of the judgment of said court as adjudges that the plaintiffs recover the costs of the action against these appellants is reversed; each party to pay their own costs in this court, except the costs *243of the clerk of this court, which shall be paid by the re-spondeuts. The case is remanded with directions to the circuit court to make such order for the recovery of costs against the appellants as indicated in this opinion.