the lien." Shaw v. Neal, 4 Jurist, (N. S.) 697. By applying a different rule to some of the every-day transactions of life, the wisdom of the doctrine announced in the cases which have been noticed will at once be apparent. For example: I buy a horse at auction, and ride away with it. The next day the tax-collector demands of me the tax assessed the previous year against its late owner, in respect of the horse. The horse in the meantime may have changed hands many times. If any lien exists in such a case, it is obvious that it still holds the horse, follows it into my hands, and that I must pay the tax. If this were not the case, it would be no lien; for a lien is something that binds, and such a charge upon the property would have no binding force. But who ever heard of a bona fide purchaser of personal property being compelled to pay the taxes of his vendor, on the theory that they were liens upon the property? If such a doctrine should ever become established as law, no person could buy a bill of goods of a merchant, or purchase a horse or any species of chattels, with any degree of certainty as to his title. It would be necessary for him to go back for years and ascertain who had been the former owners of the goods, and whether they had regularly paid the taxes assessed against them in respect of such goods. Such a rule of law would hamper the transfer of personal property to a degree which can hardly be foreseen.

EQUITABLE RIGHTS OF A WIFE IN THE MORTGAGED ESTATE OF HER HUSBAND. THE THAMES LOAN AND TRUST COMPANY v. JULIAN ET AL.

United States Circuit Court, District of Indiana, May Term, 1877.

Before HON. WALTER Q. GRESHAM, District Judge.

A wife who has mortgaged her individual interest in her husband's lands to secure his individual debt, has an equitable right to require that her interest shall not be sold, if her husband's interest will sell for enough to satisfy the debt. The wife's inchoate right in her husband's lands, contingent upon his death, or the extinguishment of his title by judicial sale, the courts will properly guard and protect. Act of March 11, 1875, (1 R. S. 1876, 554), construed.

GRESHAM, J.

The Thames Loan and Trust Company files its bill against Jacob B. Julian and Martha, his wife, and Arthur L. Wright, assignee of said Jacob B. Julian, to foreclose a mortgage given by the Julians on certain real estate to secure a loan of $10,000.

Martha Julian files her cross-bill against the plaintiff and her co-defendants, averring that the debt secured by the said mortgage is not hers, but her said husband's; that she signed said mortgage simply for his accommodation; and that, as between herself and him or his assigns, her part of the mortgage premises ought to be last sold, or not sold at all, unless necessary to make the full amount of the plaintiff's debt; that said mortgage property is worth less than twenty thousand dollars, and her interest therein is one-fourth as fee simple, which she has a right to have set off to her under the statutes of this state, on the sale of her husband's part, under such decree as may be rendered to pay

said mortgage, provided it should sell for enough to pay the same, and praying that in the final decree the court direct that the mortgage premises be first offered for sale subject to her inchoate right of inheritance, and if at such sale enough be bid for said property subject to her inchoate title to satisfy the decree, then her title and interest to remain to her unaffected by such decree and sale, and for all other equitable relief. To this cross-bill the assignee demurs.

The only controversy is between Mrs. Julian and the assignee of her husband's estate, who seeks to make the mortgage available for the general creditors.

Under the statutes of this state Mrs. Julian has an inchoate right of inheritance to one-fourth of the incumbered premises. May v. Fletcher, 40 Ind. 576; Brannan v. May, 42 Ind. 93. This interest she pledged for her husband's debt, and in doing so established between him and herself the relation of principal and surety. As between herself and her husband she has certain equitable rights. Having mortgaged her individual interest in her husband's lands for his individual debt, she has a right to say that her interest shall not be offered if her husband's interest will sell for enough to satisfy the debt. If her husband were dead, and his estate in administration, Mrs. Julian would have a right as against her husband's creditors to have the entire mortgage debt paid out of the personal assets. Perry v. Benton, 25 Ind. 274.

Under the statutes of this state Mrs. Julian's inchoate right to one-fourth of the mortgage premises is absolute against everybody but the holder of the mortgage. She might redeem from the mortgage, and be subrogated to all the rights of the mortgagees and their foreclosure, and sell her husband's title, leaving her own unextinguished.

If she should now exercise this right of redemption and subrogation, the assignee might sell, subject to both the mortgage debt and her marital rights, or he might pay the mortgage debt and sell subject to her marital interest only. The wife's inchoate right in her husband's lands, contingent upon his death, or the extinguishment of his title by judicial sale, the courts, in a proper case, will not refuse to guard and protect. The case of McCormick v. Hunter, 50 Ind. 186, which was cited by counsel for the assignee as authority against the right asserted by Mrs. Julian, merely holds that "during coverture the wife has no interest in the husband's real estate which, while his interest remains in the same, can be separately conveyed."

Thus far I have considered the marital rights of Mrs. Julian without reference to the act approved March 11th, 1875. 1 Davis's R. S. 554. The act declares that in all cases of judicial sales of real property in which any married woman has an inchoate interest by virtue of her marriage, and such inchoate interest is not directed by the judgment to be sold or barred by virtue of such sale, such interest shall become vested in the wife to the same extent and as absolutely as the inchoate interest of a married woman now becomes vested upon the death of her husband. Before the passage of this act the wife's inchoate right ripened into a perfect title on the death of her husband. Now her title is perfect upon the death of her husband or the extinguishment of his title by judicial sale. It is clear that the title of Jacob B. Julian to the real estate described in the mortgage is now in his assignee, Wright. If this case proceeds to a decree of foreclosure and sale, the purchaser will acquire the title of the assignee. Jacob B. Julian has no title to sell. It is only when the husband's title is extinguished by “judicial sale," that the wife's inchoate title becomes perfect under the act of 1875.

Whether an adjudication of bankruptcy on a voluntary petition is a judicial sale within the meaning of

that act, is not a question necessarily involved in this case. Mrs. Julian joined in the mortgage, and thereby as between hereself and the mortgagee bound her interest in the premises for the debt.

If the land is first offered for sale subject to her marital rights, (as I think it should be, for she certainly has some interest in it), the act of 1875 has no bearing upon the case otherwise than as affording additional evidence of the settled purpose of the legislature of this state to secure to married women an interest in all the real estate owned by their husbands at the time of their marriage, or that may be acquired during coverture. Demurrer overruled.

MECHANIC'S LIEN ON RAILWAYS-SUPPLIES-EEFECT OF TAKING COLLAT

ERAL SECURITY.

TAYLOR ET AL. v. THE BURLINGTON, CEDAR RAPIDS AND MINNESOTA RAILWAY CO.

United States Circuit Court, District of Iowa, May Term, 1877.

Before HON. JOHN F. DILLON, Circuit Judge, and HON. JAMES M. LOVE, District Judge.

1. MECHANIC'S LIEN-SELLERS OF WIND ENGINES AND PUMPS.-Upon the facts, the sellers of wind engines and pumps delivered to the railroad company held, under the legislation of Iowa, not entitled to a mechanic's lien.

2. EFFECT OF TAKING COLLATERAL SECURITY in defeating the right to a mechanic's lien.

IN the matter of the intervening petition of the United States Wind Engine and Pump Company. The material facts are in brief as follows:

1. Between April 14, 1870, and March 5, 1875, intervenors sold and delivered to the B., C. R. & M. R. R. Co. wind engines and fixtures to the value of $11,137.17, of which has been paid $7,167.43, leaving balance due $3,969.74,-bearing interest at ten per cent., $2,626.02; bearing interest at six per cent., $1,343.72,— as shown by agreed statement and from data there given.

2. They were all sold under a verbal agreement "that the title to the engines should not vest in the railway company till paid for." It was, of course, not recorded.

3. December 6, 1875, petitioners (U. S. Wind Engine and Pump Company) filed its petition asking payment from the receiver for the balance due, or the right to remove the engines, etc., or other relief; and on the same day the trustees in the railway mortgages filed answer averring that the agreement for title was not good, because not recorded, as required by act of 1872 (Code, § 1922), and averring title in the railway company, and through them were subject to the mortgage, etc., and on the same day general replication was filed.

4. April 5, 1876, intervenors amended, by leave of the court, and claimed mechanic's lien on the entire road, etc., under statements for liens filed, in all counties where engines were situated on March 27 and 28, 1876.

May 1, 1876, the trustees answered, claiming priority for their mortgages, denying our right to a lien, because not filed within one year after the last engines were sold, and because no part of the construction or repair of the road. May 6, 1876, replication filed.

The amount due petitioners was not disputed. The parties stipulated as to the facts.

Hubbard & Deacon, for the petitioners; James Grant, for the trustees in the railway mortgages. DILLON, Circuit Judge:

The petitioners on December 6, 1875, filed their petition to recover out of the fund in court, or have returned to them certain wind-mills and articles furnished to repair the same, furnished on and since November 30, 1873. The petition alleges that pumps and engines had been furnished before that, but all that were furnished prior to Nov. 15, 1873, had been paid for. It alleges that said mills and fixtures were furnished to said railway company by virtue of a "verbal agreement that they were to be paid for in monthly installments, and the Wind Company were not to relinquish their title until they were paid, and it was expressly understood, in case of default the plaintiff should have the right to take and remove the mills and fixtures" (see the first bill). The defendant answered, denying the agreement as to title, and averring that said contract was not in writing acknowledged and recorded, and could not be enforced. Upon the coming in of this answer, the plaintiff, on the 21st of March, 1876, filed a mechanic's lien claim, and amended his bill, claiming alternatively a mechanic's lien, not only for the wind-mills and pumps, but for the supplies and repairs of the same. The right to a mechanic's lien is denied by an answer filed to the amended petition. The material stipulation in the agreed facts is as follows: "An agreement or understanding existed between the U. S. Wind Engine and Pump Company and said railway company, that the title to all the property delivered should not vest in the railway company until paid for; but said agreement was not in writing, and was never recorded." The petitioners ask alternative relief.

1. They claim that effect should be given to the verbal agreement as to the title remaining in the petitioners until payment for the engines was made. The answer of the trustees is that, the agreement not being recorded, it can not avail as against them without notice of it. All the engines delivered before November, 1873, have been paid for. It is those delivered after that date, that are in controversy. If regarded as realty, the recording statute would give the priority to the mortgagee without notice. If personal property, the act of 1872 (Code, § 1922) declares the condition as to retaining title invalid against creditors without notice, unless the instrument be in writing and recorded. It was neither in writing nor recorded. Nor is it shown that the trustees in the railway mortgage had notice thereof. It is not stated in the stipulation, when the agreement as to title remaining in the seller was made; but as engines were sold from time to time, beginning in April, 1870, it is argued that the agreement must have been made prior to that time, and hence it was a continuing agreement, ante-dating the statute, and hence under our decision in the Haskell and Barker Car Company case it need not be recorded. But in that case there was an agreement in writing prior to the statute and specifically relating to the cars in dispute. In this case it is not shown that prior to the statute of 1872 (Code, § 1922) the parties made a contract which bound the petitioners to furnish, and the railway company to receive, the engines now in dispute, viz., those delivered after November, 1873. The statute (§ 1922), therefore, applies, and must have effect if the trustees in the railway mortgage are "creditors" of the railway company within the meaning of the section.

The railway mortgages under which the trustees claim, were made and recorded prior to the delivery of the engines in question. The statute of the state authorizes railway companies, not only to mortgage their existing property, "but also property, both real and personal, which may thereafter be acquired, and shall be as valid and effectual for that purpose as if the property was in possession at the time of the execu

tion thereof" (Code, § 1284); and the recording thereof "shall be notice to all the world of the rights of all parties under the same." Code, § 1285.

The railway mortgages were executed and recorded prior to the delivery of the engines not paid for, and cover all after-acquired property pertaining to the railway. These engines are on the right of way, are essential to the use of the railway, and are part of it. They fall within the property embraced in the mortgage. But it is claimed that, as to after-acquired property, the mortgagee must take it cum onere (United States v. New Orleans, 12 Wall. 362); and, as the stipulation as to title being retained by the seller is good between the parties, it is likewise good as to the mortgagee or trustees. Treating these engines as in the nature of personalty or removable fixtures, I am inclined to think, aside from the requirements of section 1922 of the Code, that this position would be sound. But the mortgagees are creditors of the railway company, and such verbal unrecorded agreements are declared to be invalid against "any creditor" (prior or subsequent) without notice, and hence are ineffectual as against the trustees in the railway mortgage.

2. As to the claim for a mechanic's lien, section 2129 of the Code enacts that "no person shall be entitled to a mechanic's lien, who takes collateral security on the same contract."

It is admitted that, for the purpose of securing payment, the vendors made a contract to retain the title. This would be good between the parties, and would be good against creditors, if it had been reduced to writing, acknowledged and recorded.

A seller who undertakes to secure himself in this specific way, showing that he does not rely upon the lien given by the statute to the mechanic or materialman-a way inconsistent in its nature with a right to a lien under the statute-takes "collateral security" within the meaning of the statute, and hence is not entitled to a mechanic's lien. LOVE, J., concurs. Petition dismissed.

MECHANIC'S LIEN ON RAILWAYS-RELATIVE RIGHTS AND PRIORITIES OF MECHANICS AND MORTGAGEES UNDER THE LEGISLATION OF IOWA.

TAYLOR ET AL. v. THE BURLINGTON, CEDAR RAPIDS AND MINNESOTA RAILWAY CO. United States Circuit Court, District of Iowa, May Term, 1877.

Before HON. JOHN F. DILLON, Circuit Judge, and HON. JAMES M. LOVE, District Judge.

1. LIEN OF MECHANICS AND MATERIAL-MEN. - Under the legislation of Iowa, mechanics and material-men are entitled to a lien on railways for their work and labor.

2. MORTGAGE PRIORITY OF LIEN. -Such lien dates from the commencement of the building of the railway, and is prior to a mortgage executed pending the building of the railway, and before the particular work was done or materials furnished for which the lien is claimed.

3. UNDER THE LEGISLATION OF IOWA the relative rights and priorities of mechanics and mortgagees considered and determined.

4. WITHIN WHAT TIME must mechanic's liens be filed and enforced.

In re petition of Wells, French & Co. to establish mechanic's lien on the railway embraced in the mortgage of the Railway Co. to the plaintiffs.

The plaintiffs in the main suit, Taylor et al., are trustees in railway mortgages on the Burlington, Cedar

Rapids and Minnesota Railway Company. These mortgages include all existing and future to be acquired property of the company, including rollingstock and rents and income, and were executed and recorded before the work was done and the materials furnished by the intervening petitioners.

Prior to the execution of the mortgages the railway was projected and partially surveyed from Burlington to Plymouth, (in the north part of the state), and about $155,000 expended in grading and preparing the roadbed along different parts of the line. The Muscatine Division was purchased from another company, which had graded and tied about twenty-five miles thereof; after the purchase thereof by the B., C. R. and M. Railway Co., to wit, July, 1872, the latter company executed the mortgage thereon, which was duly recorded. The main line was built in three divisions-the last being completed December 1, 1872;-but all are and were designed to be one railroad, and all are included in the mortgage to plaintiffs, which was recorded after work was begun on the second division.

Wells, French & Co., pending the foreclosure suit against the railway company, came into court and filed a petition setting up their claims and asking an order on the receiver to pay them. This petition was amended, asking to establish a mechanic's lien on the railroad for one span of a truss bridge over Mud Creek, on the main line; for two spans of truss bridge over the Iowa River on the Muscatine Division, and for 40 coal cars. The dates and amount of their claim are as follows:

1. For one span Howe truss bridge furnished for main line over Mud Creek between Vinton and Cedar Rapids, Feb. 24, 1874. Amount due,........................

with ten per cent. interest from April 12, 1874.

2. For two spans Howe truss bridge over Iowa River, Muscatine Division, delivered December, 1873, balance due December 4, 1873,.......

$1,404 50

1,313 85

....

Leaving general balance due............................... 11,608 04 The last $1,500 was applied on interest due and balance on first note for cars.

In respect to these Howe Truss Bridges the parties agreed as follows:

That the span of Howe Truss Bridge of 75 feet, which was sold in 1874, was sold in lumber and iron in Chicago, and delivered there in separate pieces and put up across Mud Creek, and iron put over it by the R. R. Co. on the main line, on the division between Cedar Rapids and Waterloo after the main line was finished, and in operation, and was put up to supply the place of a bridge at the same place, which was broken down or carried away by high water.

That the two spans of Howe Truss Bridge finished in 1873 for the Iowa River on the Muscatine Division were sold and delivered at the date named in 1873 at Chicago, and placed in place by the railroad company, and iron and ties put over them by the railroad com

pany. That the said B., C. R. and M. R. R. Company purchased the Muscatine Division when it was graded and tied for about 25 miies, of another railroad company, and placed the mortgage on that division and recorded it, before the said B., C. R. and M. Company commenced any work on the division, but after it was graded by the other company.

The date of delivery of the span over Mud Creek was on the 24th day of February, 1874. The date of the delivery of the two spans over the Iowa River, on the Muscatine Division, was on the 26th day of December, 1873.

The contract to furnish 40 coal cars is in writing, dated Aug. 3, 1873, and the cars were sold and delivered without any condition, and this contract was made and the cars delivered long after the main line of the railroad was completed. On November 9, 1875, Wells, French, & Co. filed statements for liens in Benton and Johnson counties for the bridges, and on November 18 filed statement in Linn county for balance due on cars. On December 14, 1875, Wells, French & Co. filed amended petition to enforce and establish these liens, and prayed and claimed a lien on the whole road for each amount. December 28, 1875, the trustees answered the petition, setting up the Statute of Limit. ations against the lien, and averred that Wells, French & Co. were not entitled to a lien as against the mortgage.

The question is whether Wells, French & Co. are entitled to a mechanic's lien for all or any part of these elaims, and if so, whether it is prior or subsequent to the lien of the mortgage.

The provisions of the statute upon which this question depends are mainly sections 2130, 2137, 2139, 2140, 2141, 2143, 2510, 2539, of the Code of Iowa of 1873, which, so far as material, are referred to in the opinion of the court.

Hubbard & Deacon, for Wells, French & Co.; James Grant, for Railway Mortgage Trustees.

DILLON, Circuit Judge:

In the various railway foreclosure cases in this court there are probably forty intervening petitions filed, seeking to establish on behalf of the claimants mechanics' lien on the property covered by the railway mortgages. The trustees in these mortgages resist the right to any lien whatever in many cases, and particularly resist the establishment of a mechanic's lien in any case where the labor was done or the materials were furnished after the recording of the mortgage, which shall have priority over the mortgage. There are also questions as to the lien for repairs after the road has been completed, as distinguished from the right to a lien for original construction; and questions also as to limitation of the lien of the mechanic.

The most important of these questions are presented in the case of Wells, French & Co., and that has, therefore, been selected as the one in which to state the conclusions at which the court has arrived. In many respects no two things are more unlike than the erection of an ordinary building and the construction and equipment of a line of railway, and much of the difficulty in construing the legislation of the state has arisen out of the grouping of the two by the legislature, and making a uniform or single provision for both. The duty of the eourt is to feel its way to the legislative intent and give that intent effect as far as it may. Wherever the statute has been construed by the Supreme Court of the state, that construction will be accepted as a rule of decision by this court. While we have considered every decision of the State Supreme Court which bears upon the questions before us, and also the full and exhaustive discussions of counsel, it is not proposed to go into an elaborate exposition of the different provisions of the

statute, but mainly to state the results to which our examination has brought us.

The mechanics' lien statute (Code, secs. 2130, 2132) extends inter alia to all persons "who construct or repair any work of internal improvement," including railways, and gives a lien "for labor done or materials, machinery or fixtures furnished" upon "such building, erection or improvement, and upon the land belonging to the owner on which the same is situated." Another section provides for the filing of the claim with the county clerk within 90 days after the work is done, and declares what shall be the effect of a failure to file. Sec. 2137.

Section 2139 first provides for the priority of mechanics' liens as among themselves, making the same depend upon the order of filing, and then proceeds to enact that such liens "shall be preferred to all other liens and incumbrances which may be attached to or upon such building, erection or other improvement and to the land on which the same is situated, or either of them, made subsequent to the commencement of said building, erection or improvement." The lien extends to the entire land to the extent of the interest of the person for whom the mechanic did the work or furnished materials, and to a leasehold interest, as to which the provision is that the forfeiture of the lease shall not impair the mechanic's lien as to the buildings, but the same may be sold to satisfy the lien and be moved off within 30 days after the sale. Sec. 2140.

Section 2141 provides for still another case in these words: "The lien for the things aforesaid or work shall attach to the buildings, erection or improvements for which they were furnished or done, in preference to any prior lien, or incumbrance, or mortgage upon the land upon which the same is erected or put; and any person enforcing such lien may have such building, erection or other improvement sold under execution, and the purchaser may remove the same within a reasonable time thereafter." Sec. 2141. The suit to enforce a mechanic's lien must be in equity. Sec. 2510.

We hold as follows:

1. Section 2139 contemplates and provides for a case where, at the time of the commencement of the building or railway, there is no recorded lien or incumbrance thereon, and where such lien or incumbrance is created subsequent to the commencement of the building or railway; in which case the mechanic has a lien which relates back to the commencement of the building or railway, although the particular work of that mechanic was done, or his materials were furnished, after a mortgage was recorded or lien created. As to an ordinary building, the proposition just stated admits of no doubt; indeed, it has been expressly decided to be correct by the Supreme Court of the United States, in respect of an enactment copied from the Iowa statute. Davis v. Bisland, 18 Wall. 659. As to the application of this principle to railways, the decision of the Supreme Court of Iowa is conclusive. Nelson v. Iowa Eastern Railway Co., September Term, 1876, 10 Western Jurist, 604; 3 Cent.. L. J. 703.

Construing section 1853 (the same as section 2139 of the Code of 1873), it was decided, in the case last cited, that the lien of the mechanic dates from the commencement of the railway, treating it as an entirety, and has priority over a mortgage executed after the work of constructing some portion of the railway has been commenced, and before the particular work was done, or materials furnished, for which the mechanic's lien is claimed.

2. Section 2141 makes provision for a still different case. This section contemplates and provides for a case where there is a mortgage, lien or incumbrance

upon the land prior to the time when the owner commences "a building, erection or other improvement thereon." What, then, are the relative rights of such prior incumbrances and the mechanic? This is plainly determined by the section itself. As to the land, the mortgage is declared to retain its priority; but as to the buildings, erections or improvements put upon the land subsequent to the mortgage, the mechanic has priority over the mortgagee-may enforce his lien accordingly, and have the building, erection or improvement sold on execution, and remove the same within a reasonable time. The mechanic has in such a case the same right as against the mortgagee, that he has as against the lessor under the preceding section. This view, to the extent just stated, is in accordance with the decision of the Supreme Court of the State, in Getchell v. Allen, 34 Ia. 559, which case, so far as it relates to an "independent erection on the land," is undoubtedly correct, and is approved, at least to this extent, by the same court, in the subsequent case of Nelson v. Iowa Eastern Railway Co., supra.

3. But, suppose the prior mortgage attaches, not only to land, but to a completed house or other erection or improvement thereon, and the house or other improvement is repaired by the mechanic at the instance of the owner,-what then are the relative rights of the mortgagee and the mechanic? This was the question which gave so much trouble to the State Supreme Court, as will be seen by reference to Getchell v. Allen, and the first opinion of that court in the Neilson case. Under section 2130, undoubtedly, the mechanic has a lien for repairs to a building erected and completed before the repairs were begun. That section uses the word "repairs;" and reparations by a mechanic are within the remedial purpose of the legislature. But when does such lien attach, and how is it to be enforced? As against the owner, the lien attaches from the time the repairs are begun. This is plain enough and just. But when does this lien attach as against a prior mortgagee of land and building? The answer is, at the same time it attaches as against the owner. The result is that repairs on a previously completed building or railway, on which a mortgage rested prior to the commencement of such repairs, do not give a lien which will override the lien of the mortgage. The legislature has not authorized the owner of a building or railway, on which such owner has given a mortgage, to improve the mortgagee out of existence by making repairs ad libitum and furnishing the owner the necessary credit therefor, by giving the mechanic and material-men a lien paramount to the mortgage. Such a view has neither law, justice, equity nor public policy to recommend it. This conclusion accords with the opinion of the Supreme Court on this point in one branch of the case of Getchell v. Allen. To such a case section 2141 of the Code does not apply -that section only applying to cases where the lien of the mechanic is sought with respect to improvements which were not on the land when the prior mortgage was taken, and on the security of which the mortgage did not rely.

Suppose a lessee improves the house of the lessor,it would hardly be contended, under section 2140, that the mechanic could sell the whole house under his lien and move it away. Nor under section 2141 can he do this with respect to a building covered by a prior lien. The provisions and purpose of the two sections in this regard are the same.

Where there is a prior lien on the building or railway, these once having been completed, and a mechanic subsequently does work or furnishes materials, he has a lien, but a lien subordinate to the mortgage, and which must be enforced as such, and it is accompanied with no right of removal. This view accords

with the language of the statute and with its policy, and leads to just results. Any other view leads to confusion and injustice.

Applying these principles to the case of Wells, French & Co., the result is this:

1. As respects the bridge furnished in 1874, after the execution of the plaintiff's mortgage, and after the road had been completed, to replace a bridge which had been carried away, any lien which it would be possible to get therefor would be subsequent to the mortgage.

2. The same principle applies to the coal cars furnished in 1873, even if it were conceded that there was a lien upon a railroad for cars furnished to use thereon, which is extremely doubtful. New England Car Co. v. B. & O. R. R., 11 Md. 81.

3. As to the two spans of bridge furnished in December, 1873, for the orlginal construction of the Muscatine Division, the petitioners are entitled to a lien, if they have complied with the provisions of the statute in respect to filing their claim and bringing suit to enforce it. Code, §§ 2137, 2138, 2529. As these were delivered December 26, 1873, the case falls within the Code of 1873, and not the Revision of 1860.

Under the Code of 1873 (§ 2137), the mechanic may file his lien within ninety days, etc., "but a failure to file the same within the time aforesaid shall not defeat the lien except against purchasers or incumbrancers in good faith without notice, whose rights accrued after the ninety days and before any claim for the lien was filed."

"Actions to enforce a mechanic's lien must be brought within two years from the time of filing the statement in the clerk's office." Sec. 2529. The two bridge spans in question were delivered December 26, 1873,-statement for lien filed November 9, 1875, and the petition filed to enforce and establish the lien December 14, 1875, which was within the two years. As against the railway company, the failure to file the statement for a lien does not defeat the lien, and there are no incumbrancers or purchasers whose rights accrued after the ninety days and before the same was filed. The supposed defect in the statement, if not cured by the stipulation, is not of such a nature as to defeat the lien. For the amount due for these two spans, $1,313.85, with interest, the petitioners are entitled to a lien prior to the mortgage. LOVE, J., concurs. DECREE ACCORDINGLY.

NOTE.-At the same term of the court, in the same case, in the matter of the intervening petition of the Union Rolling Mill Co., a brief opinion was delivered upon the right to a mechanic's lien for repairs under the Iowa Statute, as follows: DILLON, Circuit Judge. At a period distinctly after the railroad was finished, and had long been operated, the Rolling Mill Company furnished to the railway company (in April, June, August and December, 1874,) iron and steel rails for the repair of their lines of railway; which rails were placed in their said railway, and have ever since been and are now used as part of the track thereof. The mortgages were recorded years before. This petition raises the single question, whether a lien exists under the mechanic's lien statute for repairs to a railway previously completed and in operation, which is superior to the lien of a mortgage made and recorded before the repairs, but subsequent to the original commencement of the work of constructing the railway. This question is covered by the principles laid down in the case of Wells, French & Co. The petitioners have a lien, but it is subsequent to the mortgage. The result would have been different, if the rails had been furnished for the original or first construction of the road. LOVE, J., concurred.

A SUIT has been instituted in the Brooklyn Supreme Court against Shook & Palmer, lessees of the late Brooklyn Theatre, for damages caused to the plaintiff by the loss of her husband's life in the great theatre fire.