at the time of executing or making the contract for furnishing material or performing labor, or during the progress of the work, erection, building or other improvement, shall take any collateral security on such contract." In Bissell v. Lewis, 56 Iowa, 231, S. C. 9 N. W. Rep. 177, the court said: "The object of the statute doubtless is to prevent any one from obtaining a lien who takes security for the amount due, or to become due, at any time before he completes his contract, be it for work or materials.' As already stated, in the within contract, upon which complainant bases its action, it is provided that the waterworks company should deposit, as security for the full performance of the contract ou part of the construction company, the sum of $10,000 in the Commercial Bank of St. Louis. In the statement of account attached to the bill, and forming part thereof, it is stated that on the twenty-first of December, 1883, there was paid on account the sum of $10,000, being the amount of collateral deposit made May 23d. The fair inference from this credit is that the sum agreed to be deposited as security was in fact deposited as required by the terms of the contract. Assuming this to be the fact, it then appears that the complainant, in making the contract for the furnishing of the materials for which it now seeks to establish a lien under the statute, contracted for the deposit of $10,000 as security for the payments contracted to be made to it, and the money was deposited as security in accordance with the terms of the contract. If this sum of money was deposited for the purpose stated, then it is clear that complainant did not rely upon its right to a mechanic's lien for security, but did contract for and obtain other security thereon; and under the very terms of the statute conferring the right to a mechanic's lien, no such lien can be claimed or enforced, if the party claiming the lien has taken security for the amount due, or to become due him, before he completed his contract. It was said in argument that all that could be inferred from the bill filed in this cause was, that the complainant had contracted to take security, and that it did not appear that such security had been in fact given.

In ruling upon the demurrer it has been considered that the record. sufficiently shows that the deposit provided for in the contract was in truth made. If such deposit was not in fact made, leave is granted to complainant to amend its bill by averring that such deposit was not made. As the case now stands, the demurrer to the bill is sustained upon the ground above stated.

The demurrer also presents the question whether it is shown that complainant furnished the materials in pursuance of a contract with the owner of the property upon which the lien is sought; it being claimed that the contract for the furnishing of the materials was made, not with the owner of the property, but with another party. This question can be better determined, if the case proceeds further, upon the final hearing than as now presented, and it is therefore reserved for decision at the final hearing. The same course will be pur

1

sued in regard to the question whether the property, upon which the lien is sought, is of such a public character that the court will not enforce a lien thereon under the provisions of section 3048 of the Code of Iowa, which exempts from sale upon execution public property necessary and proper for carrying on the general purposes of the corporation. That question will more properly arise in case the city becomes a party to this litigation, and it is therefore reserved for future disposition.

The demurrer to the bill is therefore sustained upon the ground that it appears from the record that the complainant, before the completion of its contract for the furnishing of the materials, took and received collateral security, and is not, therefore, entitled to a mechanic's lien. If the facts justify it, complainant has leave to amend its bill so as to show that in fact the security provided for in the contract was not deposited. If such amendment is made within 30 days from this date, then complainant is required to make the city of Council Bluffs a party defendant, in order that its rights may be heard and adjudged in this proceeding.

NOTE.

Mechanic's Lien-Exemption of Public Property.

In Wilkinson v. Hoffman, 21 N. W. Rep. 816, it was held that Rev. St. Wis. 1878, ? 3314, authorizing a mechanic's lien, did not extend to a building, or machinery placed in a building, constituting a part of the water-works of a city; and COLE, C. J., in delivering the opinion of the court, says: "It has never been understood that the statutes giving a mechanic's lien extended to or could be enforced against the building and real estate of a municipal corporation held for public use. The considerations founded on grounds of public policy and regard for the objects of municipal government forbid that this clause [Rev. St. ? 3314] should be held to apply to machinery placed in a building constituting a part of the city water-works as strongly as to exempt the building itself. The public inconvenience which would result from having such machinery removed is too obvious and grave to require any discussion. The comfort, health, safety, and property of the citizens would be greatly endangered by allowing the facilities for procuring water to be suspended, even for a short period. In view of the serious consequences which would result by allowing the lien to machinery thus used, and which more than countervail any private advantage, we are inclined to hold that the provision does not apply in the case before us. True, the city has paid into court the price of the boilers; but suppose it had not done so, if the lien is given, they might be removed. Consequently, on grounds of public necessity and convenience, we must hold that the lien did not attach. The case stands upon the same ground as where material is furnished for a county court-house, jail, public school building, or other public buildings, which are held to be exempt from the operation of mechanics' lien laws." So, in Board, etc., Parke Co. v. O'Connor, 86 Ind. 531, it is said, overruling Shattell v. Woodward, 17 Ind. 225, that there is no provision in the mechanic's lien law of Indiana "to the effect that such a lien may be acquired or enforced upon or against public property held for public use; and in the absence of such a provision it must be held, in conformity with the weight of decision elsewhere, that such a lien can neither be acquired nor enforced upon or against such property held for public use." See, also, Board, etc., Pike Co. v. Norrington, 82 Ind. 190; Lowe v. Board, etc., Howard Co., 94 Ind. 553; and Falout v. Board of School Com'rs, 1 N. E. Rep. 389. The principle laid down in the above cases is in accord with the law as decided in Pennsylvania, Foster v. Fowler, 60 Pa. St. 27; Wilson v. Commissioners, 7 Watts & S. 197; Williams v. Controllers, 18 Pa. St. 275; New York: Brinckerhoff v. Board of Education, 37 How. Pr. 520; Poillon v. Mayor of New York, 47 N. Y. 666; Leonard v. City of Brooklyn, 71 N. Y. 498; Iowa: Charnock v. Colfax Tp., 51 Iowa, 70; Loring v. Small, 50 Iowa, 271; Lewis v. Chickasaw Co., Id. 235; Whiting v. Story Co., 54 Iowa, 81; S. C. 6 N. W. Rep. 137; Illinois: Board of Education v Neidenberger, 78 Ill. 58; Bouton v. McDonough Co., 84 Ill. 396; and Missouri: State v. Tiedermann, 10 Fed. Rep. 20. See, also, Frank v. Chosen Freeholders, 39 N. J. Law, 347; and Ripley v. Gage Co., 3 Neb. 397.

St. Paul, Minn.

ROBERTSON HOWARD.

LEWIS, Adm'r, v. CHITTICK and others.1

(Circuit Court, W. D. Missouri, W. D. October Term, 1885.)

SUBROGATION ADMINISTRATOR'S SALE - MORTGAGES-HOMESTEAD RIGHTS OF

WIFE-NOTICE.

A. and wife borrowed $300 of school money from the county of Livingston, Missouri, and mortgaged their homestead as security. A. died being indebted to the county for other borrowed money besides the $300, and his wife, as administratrix, under order of the probate court sold all his right, title, and claim in the land to pay his debts in 1875, and B. became the purchaser and sold the land to C., subject to the county mortgage. C. afterwards substituted his own mortgage for the one of B. and had the original mortgage of A. released, and later resold the land to B., subject to the county mortgage C. had given. B. then borrowed $400 of D., applying so much of it as was necessary to pay the county debt in that way, and paying the balance to B., who gave a mortgage on the land in controversy. Under the law of Missouri, the right to the homestead of A. passed to the wife, but none of the parties knew this, and they all dealt with the land as if the whole title had passed by the administrator's sale. The wife removed to Kansas, where she married E., and subsequently she and E. sold their interest. in the land to F. by quitclaim deed. B.'s interest had been sold under the mortgage given to secure D., but he was in possession when E. and wife conveyed to F., and B. let F. into possession, and he joined such possession to the title acquired by his quitclaim deed. D. brought suit to cancel the release of the original mortgage from A. to the county and subrogate himself to the county claim, having in fact paid the debt of the county. Held, that D. was entitled to have the release canceled and to be subrogated to the rights of the county, with authority to legally enforce his claim against the land.

In Chancery.

Wm. A. Wood, for complainant.

L. H. Waters, for defendants.

KREKEL, J. From the pleadings and evidence in this case it appears that in 1871 Burnsides and wife were living upon 60 acres of land in Livingston county, Missouri. While so living they borrowed $300 of school money of the county of Livingston, and secured it by giving a mortgage upon their homestead. Burnsides, not long after the giving the mortgage, died, and his wife administered on the estate. Burnsides, being indebted aside for the school money borrowed of the county, an order of the probate court was in due time made, directing the administrator to sell the land to pay debts, which she did, selling all the right, title, and claim of the deceased. At this sale, in 1875, one Bell became the purchaser, and he on the same day sold the land to one O'Dell, subject to the county mortgage. O'Dell afterwards substituted his own mortgage for the one of Bell, and had the original mortgage of Burnsides released. After this O'Dell resold the land to Bell, subject to the county mortgage O'Dell had given. Bell, being again the owner of the land, applied for a loan to the present plaintiff, and obtained it; so much of the loan as was necessary to pay the Livingston county debt being applied in that way,

Reported by Robertson Howard, Esq., of the St. Panl bar.

and the balance paid to Bell, who, to secure the loan, gave a mortgage upon the land in controversy. No notice was taken in all of these transactions of Mrs. Burnsides' rights. The title to the homestead of Burnsides, under the laws of Missouri, on his death passed to Mrs. Burnsides; but all the parties to the transactions, being ignorant of that fact, dealt with the land as though the whole title had passed by the administrator's sale. Mrs. Burnsides in time removed to the state of Kansas, and there married one Cooper. After this the rights of Mrs. Burnsides (now Cooper) became known, and she and husband sold their interest to the present defendant, and made him a quitclaim deed. Bell's interest in the land had been sold under the deed of trust which he had given to secure the loan of the plaintiff, but he was still in possession when Cooper and wife conveyed the land to defendant. Bell let the defendant into the possession, and he joined that possession to the title of Mrs. Burnsides growing out of her homestead.

The object of this suit, originally commenced in the state court and removed here, is to cancel the release of the original mortgage from Burnsides to Livingston county and subrogate the present plaintiff to the Livingson county claim, having in fact paid the debt of the county. It is claimed by the defendant that this ought not be done, because of the release of the Burnsides mortgage, which occurred when O'Dell substituted his own for it, and because of its payments being voluntarily made. When the present plaintiff bought the interest of Mrs. Burnsides and took a quitclaim deed, he bought nothing except the equities Mrs. Burnsides had in the land at the time of the death of Burnsides, which was a homestead right, subject, however, to the mortgage of Mr. Burnsides and herself.

It is not pretended that Mrs. Burnsides, Mr. Cooper, or Mr. Chittick, the present defendant, has paid it. The testimony is that, though Mr. O'Dell substituted his own mortgage for that of Burnsides, the money was not paid to Livingston county until the present plaintiff paid it, when she took a deed of trust to secure her loan. Now, for the defendant to say that this payment was voluntary, and it being so, I will take advantage of it so as to get a title released from the incumbrance which rested upon the homestead right of Mrs. Burnsides when he bought it, and thereby defraud plaintiff of the money she paid, is evidently so unjust and inequitable that the law nor the court will help him to commit such a wrong. Payments made in ignorance of the real state of facts, such as took place in this case, cannot be said to be voluntary. The decree of the court will be that the release of the mortgage given by Burnsides and wife to county of Livingston be canceled, and that the present plaintiff be subrogated to the rights of Livingston county, with authority to enforce her claim. against the land according to law.

v.25F,no.4-12

UNION TRUST Co. v. FISHER and others.1

(Circuit Court, D. Minnesota. October, 1885.)

1. FRAUDULENT CONVEYANCE-PURCHASE BY WIFE WITH EARNINGS Agreed to BE PAID BY HUSBAND.

In 1871 and 1872, M. F. and her husband, F. A. F., kept a lodging-house, the wife attending to the duties of the house under agreement with the husband that he would pay her what it would cost to keep a servant. The wife had no other opportunity of making money, and the $300 thus earned was not paid to her by the husband, but in 1881 he purchased a lot and had the title put in her name, in part payment of the amount and the accrued interest. F. A. F. had previously been adjudged a bankrupt, but had not included the indebtedness to his wife in the schedule of debts filed. Held, that the property in the name of M. F. was subject to the payment of judgments against F. A. F.; following Seitz v. Mitchell, 94 U. S. 584.

2. SAME-EVIDENCE-FRaud Proven.

On examination of the circumstances surrounding the transfer and purchase of property claimed to be in fraud of creditors, held, that such property, with the exception of a certain leasehold estate, should be subjected to the payment of the judgments obtained against defendant.

In Equity.

H. C. Whitney and Wilson & Lawrence, for complainant.
Boardman & Ferguson, for defendants.

NELSON, J. A judgment was entered against the defendant F. A. Fisher on April 23, 1883, for $12,161.24, in the district court of Hennepin county, in the state of Minnesota, and execution issued, which was duly returned unsatisfied on June 8th following. A bill is filed by the judgment creditor to reach and subject to the lien of the judgment certain real property standing upon the records of the county of Hennepin in the name of the defendants, Marion Fisher, his wife, Thomas J. Fisher, his brother, and Andrew J. Boardman, charging that this property was placed in the name of these parties for the purpose and with the intent to hinder, delay, and defraud the creditors of Freeman A. Fisher, and to conceal the same, and prevent its application to and for the payment of his debts. The real estate in the name of his wife is described as lots 16 and 17, in block 5, in South Minneapolis addition to Minneapolis, in the state of Minnesota, and was conveyed to her for the consideration of $700 by R. W. Jordan and wife, June 13, 1881, and duly recorded; also lot 5, in block 34, in Wilson, Bell & Wagner's addition to Minneapolis, conveyed by Nellie B. Shattuck about April 12, 1882, for the sum of $2,000. And the bill charges that Freeman J. Fisher paid the consideration for all this property, and his wife paid no part of it, and that the conveyances were made to her to defraud creditors, and upon a secret trust for him.

1 Reported by Robertson Howard, Esq., of the St. Paul bar.