Sweeney, 1 S. Dak. 642; 36 Am. St. Rep. 767, and cases cited. Prima facie, the instrument now being considered was incomplete and invalid, and was not binding upon those who signed it as sureties. Nor can we see that a distinction can be drawn between bonds which are simply joint and those which are joint and several, as was that in controversy. The doctrine upon which all of the cases before referred to are rested will not admit of such a distinction, nor is it suggested in the leading case on the other side cited by counsel for appellant: Trustees of Schools v. Sheik, 119 Ill. 579; 59 Am. Rep. 830.

This brings us to a consideration of the only remaining point. It was remarked in the Austin case that "it may be that persons executing such an instrument, which, upon its face, appears to be incomplete, may, by their own conduct, subject themselves to liability thereon, or become estopped from questioning the completeness of the instrument."

Of course no one can doubt that if sureties see fit to bind themselves absolutely, in any manner, without the signature of the principal, although named as such in the bond, they may do so, precisely as sureties may bind themselves although one of their number named as such in the obligation has refused to sign it, as was the case in Van Norman v. Barbeau, 54 Minn. 388. So we now have to inquire whether, by their conduct, these sureties have in any way concluded themselves from denying a liability upon the instrument which they signed. From the evidence it appears that a printed note of instructions was appended to the blank bond. By this the applicant for appointment was informed that the bond must be signed by himself as principal, with at least two sureties. Hornsby was a real estate dealer, and requested Lamprey and Clark to become sureties upon the bond in question, informing each that the other had agreed so to do. At his request Clark went to Lamprey's office, where the blank was. Clark there wrote, in the body 191 of the bond, the three names "A. H. Hornsby," "U. L. Lamprey," and "Chas. W. Clark," as they appear in the first quotation herein. Hornsby was not present. Clark signed the instrument in the presence of a notary public then in Lamprey's employ, and went away, leaving it with the notary. Shortly before or after this Lamprey signed the bond in the presence of Hornsby and the notary, at the same time calling Hornsby's attention to the requirements, as contained in the

appended note, stating to him that he must sign it as principal, and that without his signature it would be worthless. Lamprey, being called away, immediately left his office. Both of these sureties expected that the bond would be signed by Hornsby as principal, and to some extent relied upon their knowledge of the custom respecting such bonds and the manner in which they were usually required to be executed. They knew nothing of a delivery of this instrument, nor did they know of its incomplete and unfinished condition until after the transaction out of which came this litigation. On these facts we are unable to see how the sureties have precluded themselves from asserting the invalidity of the obligation. There was no conduct on their part which should prevent them from taking advantage of the incompleteness. of the bond, or which should estop them from insisting that there was no contract on which they are liable.

It is the admitted fact that both of these sureties had more or less knowledge, later on, that Hornsby was acting as a notary public, but, as before stated, they were not informed of his delivery of the bond without having signed it as principal. Had they been so informed, and then allowed him to exercise the duties of a notary, it is possible that they might not have escaped the consequences of his misconduct.

We think it manifest, from the whole case, that the sureties did not intend to be bound on the instrument unless it was also executed by the principal named therein, nor was it the intention of the chief executive of the state to accept it without such execution, and, further, that the sureties have not precluded nor estopped themselves from taking advantage of the omission.

Order affirmed.

OFFICIAL BONDS-FAILURE OF PRINCIPAL TO SIGN-LIABILITY OF SURETY. The failure of a principal to sign his official bond conditioned for the faithful performance of his official duty does not render it void or release the surety from liability thereon: City of Deering v. Moore, 86 Me. 181, 41 Am. St. Rep. 534, and note. Contra: Board of Education v. Sweeney, 1S. Dak. 642; 36 Am. St. Rep, 767, and note; Weir v. Mead, 101 Cal. 125; 40 Am. St. Rep. 46, and note discussing the conflict of authority.

MERCHANTS' NATIONAL BANK OF CROOKSTON V. STANTON.

[55 MINNESOTA, 211.]

FIXTURES-BUILDINGS ON ANOTHER'S LAND.-It is entirely competent for parties to agree that buildings shall remain the personal property of him who erects them, and such an agreement may be either express or implied from the circumstances under which the buildings are erected. FIXTURES-BUILDINGS ON ANOTHER'S LAND.-If buildings are constructed

on land by one having no estate therein, and hence no interest in enhancing its value, by the permission or license of the owner, an agree ment that the structures shall remain the property of the person erecting them will be implied, in the absence of any facts or circumstances tend. ing to show a different intention.

FIXTURES - BUILDINGS ON ANOTHER'S LAND-MORTGAGES.

If buildings

are constructed on mortgaged land by one having no estate therein, and hence no interest in enhancing its value, by the permission or li cense of the mortgagor in possession, between whom there is an agree ment that the buildings shall be the personal property of the one constructing them, the absence of a concurrent agreement on the part of the mortgagee, to the same effect, does not, of itself, make the buildings a part of the mortgage security. FIXTURES ANNEXED SUBSEQUENT TO MORTGAGE - COMMON-LAW RULE INAPPLICABLE.-The old rule that all fixtures annexed subsequently to the execution of a mortgage, whether by the mortgagor or by his ten ant or licensee under a lease or license subsequent to the mortgage, became as to the mortgagee a part of the realty, is repudiated as inapplicable in states where a mortgage is a mere security, conveying neither title nor right to possession. The old rule was founded upon the common. law doctrine that a mortgage was a conveyance under which the mortgagee became the legal owner, and was entitled to immediate possession, the mortgagor in possession being considered strictly his tenant at will.

MARSHALING SECURITIES-PRIMARY FUND FOR PAYMENT OF MORTGAGE.If the owner of mortgaged lands sells portions of them to third parties, retaining part of them himself, unless the purchaser took cum onere, the portion so remaining in the mortgagor becomes the primary fund for the payment of the mortgage, and the portions sold are liable in the inverse order of their alienation. MARSHALING SECURITIES-HOMESTEAD-MORTGAGES.-If a man and wife execute a mortgage on their homestead and other lands, and afterward voluntarily convey, with covenants of warranty, a portion of the mort gaged premises, the land remaining, although the homestead, becomes the primary fund for the payment of the mortgage, as they have no equitable right to insist that their homestead shall be protected to the displacement of this countervailing equity of their grantee.

ACTION to foreclose a mortgage. Defendants Dobson and Martin alone appealed-Martin, because his chattel mortgage was held not to be a lien on the mill and machinery mentioned in the opinion, and Dobson, because his home

stead was decreed to be sold for the advantage of the mortgage to the bank.

A. A. Miller, for the appellants.

John Cromb and A. C. Wilkinson, for the respondent.

217 MITCHELL, J. The real issues in this case are somewhat obscured by the prolixity of the stipulated facts (adopted by the trial court as its findings), which contain much that was unnecessary for the determination of the case in the court below, and still more that is immaterial in the decision of any question involved in this appeal.

The primary object of this action was to foreclose a mortgage, and the principal question in the case is whether a certain building and the machinery therein situated on the mortgaged premises was, as between the plaintiff and defendants Dobson and Martin, the personal property of the latter, or a part of the realty, and hence covered by plaintiff's mortgage.

The short facts, so far as material to that question, are as follows: Defendant Stanton executed to plaintiff the mortgage in suit on his own real estate to secure the joint debt of himself and defendant Dobson. Subsequently Dobson, "with the knowledge and consent" of Stanton, erected and put on the mortgaged premises the building and machinery referred to at his own sole expense, and mainly with money loaned to him by defendant Martin, to whom, as security for its repayment, he executed a bill of sale and chattel mortgage on the building and machinery. The building was a large, two-story frame structure designed for "an oatmeal mill," with a one-story brick addition for an engine and boiler room, in which were placed machinery suitable to manufac ture oatmeal, and an engine and boiler, pulleys and shafting, sufficient to operate the same. This machinery was of the kind usually put in oatmeal mills, and was placed in and attached to the building in the usual way, some of it being screwed to the floor of the building, and some of it bolted to framework which was fastened to the floor, and 218 some of it held in position by its own weight, and all of it operated by shafting and belting, with power furnished by the engine and boiler.

There is no doubt but that such a building and machinery would, in the absence of any agreement of the parties to the contrary, become a part of the realty, and belong to the

owner of the soil. Prima facie all buildings belong to the owner of the land on which they stand as part of the realty. It is only by virtue of some agreement with the owner of the land that buildings can be held by another party as personal property. If erected wrongfully, or without such agreement, they become the property of the owner of the soil. But it is entirely competent for the parties to agree that they shall remain the personal property of him who erects them, and such an agreement may be either express or implied from the circumstances under which the buildings are erected. The trial court has made no direct or express finding as to whether there was any such agreement between Dobson and Stanton, and the question here is (first treating the case as if the controversy was between them) whether the facts found. establish prima facie an implied agreement for separate ownership of the building and machinery. The fact that Stanton had mortgaged this property to secure a debt owing by Dobson as well as himself, has no bearing upon the question in hand. That fact would not render it to Dobson's interest to expend his own money for the benefit of the land. Neither does the fact that the building was erected with money furnished to Dobson by Martin affect the question. Hence, reducing the facts found to their lowest denomination, they amount to just this: Dobson, who had no estate in the land, erected the mill at his own expense on the land of Stanton, "with the knowledge and consent" of the latter. The court did not find, and the stipulated facts do not disclose, a single other fact bearing on the question of the intention or implied agreement of the parties. The finding does, however, amount to one that the building was erected by permission and license from Stanton. At first we entertained some doubt whether this alone was sufficient to establish an implied agreement for separate ownership. Such an implication would not be drawn when a different intention of the parties is indicated by the terms of any express agreement between them on the subject, or when a different intention is 219 to be inferred from the interest of the party making the erections or from his relations to the title of the land.

But we have arrived at the conclusion that, where the erections are made by one having no estate in the land, and hence no interest in enhancing its value, by the permission or license of the owner, an agreement that the structures shall remain the property of the person making them will be