lease without notice of a claim against the owner of the land for materials furnished for improvements thereon, for which no lien statement was filed, and after the period during which the statute protects such liens without the statement, are superior to a lien claimed for such materials. Floete v. Brown, 104 Ia. 154 (73 N. W. Rep. 483; 65 Am. St. Rep. 434).

One who takes a mortgage upon land pending the construction of a building thereon, takes subject to mechanics' liens which may be acquired on account of the erection of the building. Graton & Knight Mfg. Co. v. Woodworth-Mason Co., N. H. (38 Atl. Rep. 790). One who takes a mortgage to secure a loan cannot claim priority over preexisting rights to mechanics' liens, on account of the fact that part of the money was used to pay the purchase price of the land.. Kan. Civ. Code, § 630, applied. Thomas v. Hoge, 58 Kan.. 166 (48 Pac. Rep. 844). A mechanic's lien for materials, the delivery of which was begun before the registration of a mortgage, has priority over it, although the work was not completed until after the mortgage was recorded. Bristol-Goodson Elec. L. & P. Co. v. Bristol Gas, E. L. & P. Co., 99 Tenn. 371 (42 S. W. Rep. 19). A lien claimed against a leasehold estate for improvements commenced, and the contract for which was executed before the execution of a mortgage to the lessor for money with which to make such improvements, has priority over such mortgage. J. B. Alfree Mfg. Co. v. Henry, 96 Wis. 327 (71 N. W. Rep. 370). A lien for materials furnished to a trespasser, who subsequently acquired title to the land upon which they were used, is held not to attach until he obtained a deed and to be subject to a prior mortgage executed by him to secure a loan with which he purchased the land. Birmingham Bldg. & L. Ass'n v. Boggs, 116 Ala. 587 (22 So. Rep. 852). The priority of an existing mortgage over a mechanic's lien, does not extend to an allowance of attorney's fees, provided for in case of default in payment of the mortgage. Garrett v. Adams,

Tenn.

(39 S. W. Rep. 730).

Sec. 546. Priority of mechanics' liens-Statutes construed. A vendor's lien which is prior to a subsequent claim for a mechanic's lien for work done by one having

knowledge of the vendor's lien, does not lose its priority because the vendor does not give notice as provided for by Cal. Code Civ. Proc., § 1192, requiring a person having or claiming an interest in land on which an improvement is to be erected, to give notice that he will not be responsible for the cost of the same. Kuschel v. Hunter, Cal, (50 Pac. Rep. 397). Construing and applying Ky. Gen. Stat., ch. 70, art. 1, § 14, providing that mechanics' liens "shall not be effectual against a bona fide purchaser for a valuable consideration without notice, actual or constructive; but if such purchaser receives notice of the lien before the payment of the whole of the purchase money the lien shall operate on the purchase money unpaid," it is held that a mortgagee is a purchaser within the meaning of the statute; but the statute does not relate to one whose purchase antedated the time the material was furnished for which the lien is asserted, and a notice to such purchaser does not give a lien on the unpaid purchase money. Kentucky Bldg. & Loan Ass'n v. Kister, Ky. (41 S. W. Rep. 293). Construing Mich. Pub. Acts 1891, No. 179, § 9, subd. 3, as amended by Pub. Acts 1893, No. 199, which provides that "mechanics' liens shall be preferred to all other titles, liens or incumbrances which may attach to or upon such building, machinery, structure or improvement, or to or upon the land upon which they are situated subsequent to the commencement of said building, erection, structure or improvement," it is held that a mechanic's lien has priority over a mortgage executed upon the lands or premises after the actual commencement of the building, though no part of the labor performed or materials furnished for which the lien was claimed, was done or performed until after the execution and recording of the mortgage. Kay v. Towsley, 113 Mich. 281 (71 N. W. Rep. 490). Citing, Heater Co. v. Gordon, 2 N. Dak. 246 (50 N. W. Rep. 708; 33 Am. St. Rep. 776); Murray v. Swanson, 18 Mont. 533 (46 Pac. Rep. 441); Phil. Mech. Liens (3d Ed.), § 216; Davis v. Billsland, 18 Wall 659; 2 Jones, Liens (2d Ed.), § 1470; Du Bois v. Wilson, 21 Mo. 213; Insurance Co. v. Pringle, 2 Serg. & R. 138; Lampson v. Bowen, 41 Wis. 484; Vilas v. Manufacturing Co., 91 Wis. 607 (65 N. W. Rep. 488; 51 Am. St. Rep. 925; 30 L. R. A. 778); Supply Co. v.

Cook, 52 Minn. 534 (54 N. W. Rep. 751).

Under Mont.

Comp. Stat. 1887, div. 5, § 1374, a mechanic's lien has priority over all mortgages or other liens acquired subsequent to the commencement of the work. Johnson v. Puritan Min. & Mill Co., 19 Mont. 30 (47 Pac. Rep. 337). Utah Laws 1892, ch. 30, declaring that debts of corporations or natural persons due for services performed by laborers within six months before the seizure of the debtor's property on process, or the suspension of his business by the action of creditors, or before his property shall be put into the hands of a receiver or trustee, shall be treated as preferred, does not affect the rights of existing grantees, mortgagees, or lienholders. Salt Lake Litographing Co. v. Ibex Mining & Smelting Co., 15 Utah 445 (49 Pac. Rep. 832). Under Wash. Ses. Laws 1893, pp. 33, 34, §§ 4, 5, a mechanic's lien duly filed within the time designated by the act, relates back to the time when the work was performed or the material furnished and takes precedence to all claims to the property improved which have been fastened upon it since that time. Nason v. Northwestern Mill & P. Co., 17 Wash. 142 (49 Pac. Rep. 235). Applying S. & B. Ann. Wis. Stat., 3314, providing that a mechanic's lien "shall be prior to any other lien which originates subsequent to the commencement of the construction" of a building, it is held that where a mechanic's lien attaches to property by the commencement of work upon the premises after the execution of a mortgage but before the recording of it, the mortgage is superior by virtue of the prior execution. Mathwig v. Mann, 96 Wis. 213 (71 N. W. Rep. 105; 65 Am. St. Rep. 47).

Sec. 547. Priority of mechanics' liens-Construction of statutes giving priority on buildings-Removal. Under Mont. Comp. Stat., div. 5, § 1376, a mechanic's lien has priority over a prior mortgage on the land as to the improvement for which it is claimed, where such improvement is capable of severance, but if the improvement is incapable of severance the lien attaches to the land itself and is subsequent to a preexisting mortgage. Johnson v. Puritan Min. & Milling Co., 19 Mont. 30 (47 Pac. Rep. 337). Construing McClain's Ia. Code, § 3317, subd. 4, giving

mechanics' liens for buildings erected on mortgaged land priority as to the buildings, it is held that the statute gives the holder of a mechanic's lien against an independent building, a priority of right in every case where the court shall find as a fact that such building can be removed without material injury to the security of the earlier lien holder, but where no such finding is made the land must be sold and the purchase price applied first in payment of the prior incumbrance. Tower v. Moore, 104 Ia. 345 (73 N. W. Rep. 823).

Sec. 548. Loss or waiver of lien. The burden of proving a waiver of the lien is upon the owner of the property or whoever may be seeking to avoid it. Maryland Brick Co. v. Dunkerly, 85 Md. 199 (36 Atl. Rep. 761). A surety on the bond of a contractor to keep the building free from liens, is not thereby prevented from claiming a lien for materials furnished. Atlanta Coast Brewing Co. v. Clement, 59 N. J. L. 438 (36 Atl. Rep. 883). The appointment of a receiver for a company against whom a lien is claimed, does not operate to destroy the right to enforce the lien. Totten & Hogg I. & S. Foundry Co. v. Muncie Nail Co., 148 Ind. 372 (47 N. E. Rep. 703). A material man does not waive his lien by the levy of an attachment, afterwards dismissed, on the same property to secure the same demand. Salt Lake Lithographing Co. v. Ibex Mine & S. Co., 15 Utah 440 (49 Pac. Rep. 768; 62 Am. St. Rep. 944). A contractor who agrees to take a conveyance of a certain piece of real estate in payment of his compensation for making an improvement on other land, thereby waives his right to a lien upon the premises upon which the improvement is erected. Frost v. Falgetter, 52 Neb. 692 (73 N. W. Rep. 12). One accepting property in payment of his claim for which he was entitled to a mechanic's lien, although the title to the property fails and it is replevied by the legal owner, loses the right to a lien, as against a bona fide mortgagee subsequently making advances. Garrett v. Adams, Tenn. (39 S. W. Rep. 730). A mechanic's lien is a privilege conferred by statute which may be waived by the express agreement of the party in whose favor it exists; and where a party stipulates with a vendee of premises that he will look to some other person for the payment of his claims

for services performed thereon, or that all such claims have been paid, he thereby waives his lien on such premises. Dwyer v. Salt Lake City Copper Mfg. Co., 14 Utah 339 (47 Pac. Rep. 311). For opinion denying rehearing in case of Barnett v. Stevens, 16 Ind. App. 420 (43 N. E. Rep. 661, epitomized in Vol. V, Ballards' Law Real. Prop., § 523), see Barnett v. Stevens, 16 Ind. App. 420 (45 N. E. Rep. 485). Particular case in which a subcontractor was held to have abandoned his right to a lien. Wood v. Haney, Tenn (41 S. W. Rep. 1072).

Sec. 549. Loss or waiver of lien-Taking notes or collateral security. A lien claimant does not waive his right to enforce a lien by taking a note which matures before the expiration of the time given to enforce the lien. Hines v. Chicago Bldg. & Mfg. Co., 115 Ala. 637 (22 So. Rep. 160). In order for the taking of a note to operate as a waiver of the lien it must be shown to have been taken in absolute payment of the account for which the lien is claimed. Meek v. Parker, 63 Ark. 367 (38 S. W. Rep. 900; 58 Am. St. Rep. 119). The mere acceptance of a note by one who has filed a claim for a mechanic's lien, for the amount of such claim, does not operate as a waiver of his lien unless such was the intention of the parties. Hersh & Son v. Carman, 51 Neb. 784 (71 N. W. Rep. 713). The same rule applies to one taking a note secured by a mortgage on the property against which the lien is sought. Farmers & Mechanics' Nat. Bank v. Taylor, Tex. Civ. App. (40 S. W. Rep. 876). The taking of collateral security by a lien claimant does not operate as a waiver of his lien, where such was not the intention of the parties; the taking of such security for part of his claim does not raise the presumption of waiver of the lien as to the balance. BristolGoodson Elec. L. & P. Co. v. Bristol Gas, E. L. & P. Co., 99 Tenn. 371 (42 S. W. Rep. 19). Where one having an inchoate right to a lien against the property of a gas company, for the erection of a gas plant, induced it to issue bonds secured by first mortgage lien on its property, some of which he took as collateral security for his claim and assisted in disposing of such bonds to innocent purchasers, as against such, he will be estopped to assert his lien. Bristol-Goodson Elec. L. & P.