Yeatman v. King, 2 N. D. 421, 33 Am. St. Rep. 797, 51 N. W. 728; Vermont Loan & T. Co. v. Whithed, 2 N. D. 82, 49 N. W. 318; Edmonds v. Herbrandson, 2 N. D. 270, 14 L.R.A. 725, 50 N. W. 970; Plummer v. Borsheim, 8 N. D. 565, 80 N. W. 690; State v. Julow, 129 Mo. 163, 29 L.R.A. 257, 50 Am. St. Rep. 443, 31 S. W. 781; State v. Walsh, 136 Mo. 400, 35 L.R.A. 233, 37 S. W. 1112; State v. Minor, 33 W. Va. 179, 6 L.R.A. 621, 25 Am. St. Rep. 863, 10 S. E. 285; People v. Marx, 99 N. Y. 380, 52 Am. Rep. 34, 2 N. E. 29; Cooley, Const. Lim. tools for his reasonable charges, which is, superior to the prior mortgage, as, notwithstanding the mortgagee's ownership after condition broken, it must be held to have been in the contemplation of the mortgagee that the property would be repaired, it being of such a character as suggests use, and that repairs would become necessary for its proper use and preservation; and the enhancement of value added by the repairs creates a lien in favor of the workman superior to the mortgage. Kirtley v. Morris, 43 Mo. App. 144.

Likewise, the common-law lien of one who has made necessary repairs upon a buggy bailed to him for that purpose by the mortgagor in possession, who was using the property in his business, and in whom the legal title remained, is superior to the lien of a prior mortgage which recites that the mortgagor should not so negligently or improperly use or care for the property as to subject it to probable loss or material depreciation in value, where the mortgagee knew that the buggy at times needed repairing, and had once seen it left at the shop to be repaired; such recitals and circumstances disclosing that the mortgagor had at least implied authority from the mortgagee to have the repairs made. Drummond Carriage Co. v. Mills, 54 Neb. 417, 40 L.R.A. 761, 69 Am. St. Rep. 719, 74 N. W. 966.

And a lien for repairs on a hack takes precedence of a prior mortgage describing the hack as "now in use" at certain stables, where the mortgagor retained possession of and used the property agreeably to the terms of the mortgage, as "it was the manifest intention of the parties that the hack should continue to be driven for hire, and should be kept in a proper state of repair for that purpose, not merely for the benefit of the mortgagee, but for that of the mortgagor also, by preserving the value of the security and affording a means of earning wherewithal to pay off the mortgage debt." Hammond v. Danielson, 126 Mass. 294.

And the common-law lien of a mechanic for necessary repairs made on a buggy at the request of the mortgagor, who had the possession and use thereof in the prosecution of his business, is superior to the lien of a prior, duly filed chattel mortgage, as the mortgagee, by authorizing the use of

§ 121; Luman v. Hitchens Bros. Co. 90 Md. 14, 46 L.R.A. 393, 44 Atl. 1051; Moher v. Rasmusson, 12 N. D. 71, 95 N. W. 152; First Nat. Bank v. Scott, 7 N. D. 312, 75 N. W. 254; Wright v. Sherman, 3 S. D. 290, 17 L.R.A. 792, 52 N. W. 1093; Miller v. Anderson, 1 S. D. 539, 11 L.R.A. 317, 47 N. W. 959; Owen v. Burlington, C. R. & N. R. Co. 11 S. D. 153, 74 Am. St. Rep. 786, 76 N. W. 302.

Plaintiff did not waive its mortgage in favor of the Boyle Brothers lien.

Muench v. Valley Nat. Bank, 11 Mo. App. 144; Stribling v. Splint Coal Co. 31 W. Va. the property by the mortgagor in his business, and giving him apparent ownership, impliedly authorized the repairs necessary for the preservation and continued use of the property. Tucker v. Werner, 2 Misc. 193, 21 N. Y. Supp. 264.

Where the mortgagee of a wagon permits the mortgagor to retain possession and use it in his business, and the mortgagor has necessary repairs made by a blacksmith, without the knowledge or express consent of the mortgagee, the common-law artificer's lien of the blacksmith, while he is in possession of the wagon, is superior to the prior chattel mortgage, although it was duly recorded, as the mortgagee, by permitting the mortgagor to retain and use the wagon impliedly authorized him to have such repairs made as were necessary to keep it in condition for use. Ruppert v. Zang, 73 N. J. L. 216, 62 Atl. 998.

But "where the lien is purely a statutory one, or where the property is of such a character that it would not be reasonable to anticipate the necessity for any needed repairs for the period of time the property is to or does remain in the possession of the mortgagor, or when it is but reasonable to expect the mortgagor in person to care for or repair the property, in such cases a different rule may prevail." Watts v. Sween

ey, supra.

And where a machinist has mortgaged an engine which he is constructing, an agreement by the mortgagee that the mortgagor may go on with the work on the engine, and finish it, under a previous contract, does not give the mortgagor a lien, as against the mortgagee, for work done by the former on the engine, or authorize the mortgagor, or anyone having his rights, to employ any other party to work on the engine in such a manner as to create a lien for such work as against the mortgagee. Globe Works v. Wright, 106 Mass. 207.

II. Statutory lien.

a. Expressly subject to prior liens.

Some statutory liens on personal property for work and labor are expressly subject to prior liens, and while the question under annotation seems never directly to

The common law is inapplicable to change the language of the statute or grant additional rights.

State v. Smith, 2 N. D. 515, 52 N. W 320; Duncan v. Great Northern R. Co. 17 N. D. 610, 19 L.R.A. (N.S.) 952, 118 N. W. 826; Banbury v. Sherin, 4 S. D. 88, 55 N. W. 724; McClain v. Williams, 11 S. D. 227, 49 L.R.A. 610, 74 Am. St. Rep. 791, 76 N. W. 930; Re Comassi, 107 Cal. 1, 28 left with him and stored, and providing that he may detain such goods until the lien is paid, a warehouseman is entitled to the payment of his lawful charges for storing goods before being required to surrender possession to a prior mortgagee. Industrial Loan Asso. v. Saul, 34 Misc. 188, 68 N. Y. Supp. 837.

And under a statute giving a lien upon personal property for labor performed within six months next proceeding the filing of a claim of lien, and making the continued existence of the lien conditioned upon a filing of a notice of claim of lien within ninety days after the claimant had ceased to perform the labor, etc., and declaring that no mortgage, deed of trust, or conveyance shall defeat or take precedence over said lien, although the statute has been construed not to give such lien a right of priority over mortgages which had been executed and recorded prior to the time of the commencement of the labor,-the lien is superior to the lien of a chattel mortgage executed prior to the commencement of the labor, but which is recorded after its performance and before the filing of the lien notice, and of which the labor lien claimant had no notice when he performed the work, where the labor lien is either perfected by filing a claim of lien within ninety days after the last labor performed, or is matured in accordance with statute, by the property owner's assignment or passage into a receivership within that period. Olsen v. Smith, - Wash. 146 Pac. 572.

But under a statute creating a lien on personal property in favor of a mechanic who performs labor thereon, and providing that such lien is preferred to any lien, mortgage, or other encumbrance which may attach subsequently to the time of the commencement of the performance of the labor, and is also preferred to any lien, mortgage, or other encumbrance which may have attached previously to that time, and which was not filed or recorded so as to create constructive notice thereof prior to that time, and of which the lien claimant had no notice, a mechanic's lien for repairs

Mr. Burt M. King, with Mr. R. G. MeFarland, for respondents Boyle Brothers: Defendants Boyle Brothers were entitled to the relief granted and decreed by the lower court, and to the prior and paramount lien as decreed against the plaintiff and plaintiff's mortgage herein.

McIntire v. Carver, 2 Watts & S. 392, 37 Am. Dec. 519; Garr v. Clements, 4 N. D. 562, 62 N. W. 640; Williams v. Allsup, 10 C. B. N. S. 417, 30 L. J. C. P. N. S. 353, 8 Jur. N. S. 57, 4 L. T. N. S. 550; Hammond v. Danielson, 126 Mass. 294; Watts v. Sweeney, 127 Ind. 116, 22 Am. St. Rep. 615, 26 N. E. 680; Scott v. Delahunt, 65 N. Y. 128; Tucker v. Werner, 2 Misc. 193, made on a traction engine at the request of the mortgagor is not preferred to a prior chattel mortgage which was duly filed or recorded so as to give constructive notice. A. H. Averill Machinery Co. v. Allbritton, 51 Wash. 30, 97 Pac. 1082.

And a statutory lien on a crop for the wages of a laborer producing it cannot be superior to a chattel mortgage given before the passage of the statute, as "the legis lature could not create a statutory lien which would impair a prior lien expressly permitted by law." Betts v. Ratliff, 50 Miss. 561.

c. Priority not declared by statute.

1. In general.

Where the statute creating a lien for services on personal property does not declare its priority over other liens, or show an intention to give preference to the statutory lien, it is generally held not to take precedence of a prior chattel mortgage of which the lien claimant had either actual or constructive notice at the time of rendering his services, unless the mortgagee expressly or impliedly authorized the mortgagor to engage the services for which the lien is claimed.

Thus a statutory laborer's lien for harvesting grain is not superior to a chattel mortgage executed and recorded before the grain was ready for harvesting, where the statute does not provide for such superiority. Wilson v. Donaldson, 121 Cal. 8, 43 L.R.A. 524, 66 Am. St. Rep. 17, 53 Pac. 404.

And the liens of laborers employed by a contractor with the mortgagor, to harvest and thresh a crop of grain, are not superior to a prior chattel mortgage. Rourke v. Bergevin, 4 Idaho, 742, 44 Pac. 645.

Likewise, a statutory lien upon a mare for the benefit of the keeper of a jack does not take precedence of a prior recorded mortgage, though executed after the passage of the act, where the statute does not evince the intention to give preference to the statutory lien. Easter v. Goyne, 51 Ark. 222, 11 S. W. 212.

663, 40 N. W. 513; White v. Smith, 44 N. J. L. 105, 43 Am. Rep. 347; Drummond Carriage Co. v. Mills, 54 Neb. 417, 40 L.R.A. 761, 69 Am. St. Rep. 719, 74 N.. W. 966; Kirtley v. Morris, 43 Mo. App. 144; Loss v. Fry, 1 N. Y. City Ct. Rep. 7; Herman, Chatt. Mortg. §§ 474, 535; Browne, Civil & Admiralty Law, p. 204; Jones, Liens, § 744; 8 Cyc. 900, note 90; 36 Cyc. 1173, 1174; Bolton v. Johns, 5 Pa. 145, 47 Am. Dec. 404; Parkison v. Bracken, 1 Pinney (Wis.) 174, 39 Am. Dec. 296; Vermont Loan & T. Co. v. Whithed, 2 N. D. 82, 49 N. W. 318; Edmonds v. Herbrandson, 2 N. D. 270, 14 L.R.A. 725, 50 N. W. 970; Sasser v. Martin, 101 Ga. 447, 29 S. E. 278; Craig v. Herz

And a statutory lien on a mare for the service of a stallion is not superior to a prior chattel mortgage on the mare, which was duly recorded as provided by the statute of registration, so as to charge third parties with personal knowledge thereof, where the mortgagee has in no way authorized the mortgagor to place the animal under a superior lien. Mayfield v. Spiva, 100 Ala. 223, 14 So. 47.

But a statutory lien of the keeper of a stallion for public use, on the offspring thereof, is superior to a chattel mortgage given on a mare while in foal by the stallion, and registered before the foal is dropped. Sims v. Bradford, 12 Lea, 434.

The lien of a garage-keeper for storage of an automobile at the request of a mortgagor in possession is also subordinate, in the absence of a statutory provision to the contrary, to the prior chattel mortgage, although the mortgagee had knowledge that the mortgagor was keeping the machine in the public garage. Adler v. Godfrey, 153 Wis. 186, 140 N. W. 1115.

And the statutory lien of a common carrier for the transportation of a portable "merry-go-round" at the request of a mortgagor in possession, whom the mortgagee allows to move the property from place to place, for use, within the state, is subject and inferior to the lien of a prior, duly filed mortgage, of which the carrier also had actual notice. Owen v. Burlington, C. R. & N. R. Co. 11 S. D. 153, 74 Am. St. Rep. 786, 76 N. W. 302.

Where the section of the lien law giving a warehouseman a lien on goods deposited and stored with him, for his storage charges, gives no preference, and states nothing tending to show that the lien of a warehouseman is to be preferred over a prior lien, while other sections of the law contain clauses stating when the lien may or may not have priority over other liens, it may be inferred that the legislature did not intend to give a warehouseman a preferential lien for goods stored over that of a prior, duly filed chattel mortgage. Al

len v. Becket, 84 N. Y. Supp. 1007; Singer Mfg. Co. v. Becket, 85 N. Y. Supp. 391.

Rep. 703; Notes Dak. Rep. 162, 174; Cowden v. Wright, 24 Wend. 429, 35 Am. Dec. 633.

Goss, J., delivered the opinion of the court:

Plaintiff corporation brings this action to foreclose its chattel mortgage upon a threshing engine, and to determine priority of liens thereon, and particularly as against a blacksmith's lien filed against the engine by Boyle Brothers, defendants. Plaintiff sold the engine to one Russell in 1906, taking a mortgage back, which was duly filed and has been renewed, and admittedly is, and always has been, a valid lien upon the prop

So, a warehouseman has no lien on personal property for storage, as against the holder of a prior, duly filed chattel mortgage which prohibits a removal of the goods from the residence of the mortgagor, without the consent of the mortgagee. Baumann v. Jefferson, 4 Misc. 147, 23 N. Y. Supp. 685.

And under a statute giving a warehouseman a lien on goods deposited and stored with him, for his storage charges, and providing that he may retain such goods until his lien is paid, the lien of a warehouseman on goods covered by a duly filed chattel mortgage and stored with him by the mortgagor, without the knowledge or consent of the mortgagee, and in violation of a covenant in the mortgage to the effect that the mortgagor would not remove the mortgaged property from the premises where it then was without the consent in writing of the mortgagee, and that, in the event of the property being so removed, the sum then remaining unpaid should become due, and the mortgagee be entitled to the immediate possession of the property,-is subordinate to the lien of the mortgage. Allen v. Becket, supra.

Likewise, a statutory warehouseman's lien on furniture covered by a duly filed chattel mortgage forbidding removal of the property from the house in which it was when mortgaged, which furniture had been stored, without the knowledge or consent of the mortgagee, by the mortgagor in possession after default, when the mortgagee's title and right to immediate possession had become absolute, is subordinate to the lien of the chattel mortgage. Baumann v. Post, 26 Abb. N. C. 134, 16 Daly, 385, 12 N. Y. Supp. 213.

a

And a warehouseman with whom mortgagor, without the knowledge or assent of the mortgagee, has stored mortgaged goods, after default, and when the mortgagee's title and right to immediate possession have become absolute, has no lien on the goods as against the mortgagee. Eisler v. Union Transfer & Storage Co. 16 Daly, 456, 12 N. Y. Supp. 732.

And a statute providing that a ware