1876, for labor performed for the defendants Elmores, as a mechanic upon a grist-mill, situated on said premises, from October 27, 1875, to February 10, 1877, amounting to $77.70. "3. A mechanic's lien of William J. Little, filed May 6, 1876, for work as a mechanic for Elmores, on said mill, from November 19, 1875, to February 9, 1876, amounting to $79.39. "4. A mechanic's lien of A. G. & J. S. Merrill, filed February 14, 1876, for work as mechanics for said Elmores, from May 14 to November 19, 1875, amounting to $546.45." The defendant Holt further alleges that on the twentyfourth day of February, 1872, Alexander and Adaline J. Elmore executed to Charles H. Williams a mortgage upon the property described in plaintiff's petition to secure $3,500, which mortgage has been duly assigned to the defendant, and that there is now unpaid thereon the sum of $500. This defendant further alleges that on the eighth day of November, 1877, Farnham & Lovejoy filed a mechanic's lien for material furnished to Otis Pray, then and now the owner of the water-power, mill and improvements, situated on the property described in plaintiff's petition, for material furnished to erect a dam and mill on said property, between July 19 and September 29, 1877, amounting to $1,275.88, which claim has been duly assigned to the defendant. This defendant further alleges that about June 19, 1871, Alexander and Adaline J. Elmore executed to N. B. Lord a mortgage upon the property described in plaintiff's petition, to secure the sum of $2,000, which mortgage has been duly assigned to the defendant, and that there is due thereon the sum of $237.08. This defendant further alleges that he is the owner by assignment of the chattel mortgage to secure the sum of $5,000, heretofore referred to in the answer of Otis A. Pray. This defendant further alleges that on the twenty-fourth day of November, 1875, the defendants Elmores executed to Otis A. Pray a mortgage upon the real estate described in the plaintiff's petition to secure the payment of $6,000, and that said mortgage is the property of defendant by assignment. The defendant Holt alleges that all these claims are prior to the lien of plaintiff. The plaintiff filed an answer to the cross-petition of Holt, alleging that the several claims therein set forth have been fully paid and extinguished and merged in the title of the defendant Otis A. Pray in said premises, and that the assignments were taken in Holt's name fraudulently, for the purpose of defrauding plaintiff and other holders of liens against said property. The cause was tried to the court upon written evidence. The court entered a judgment and decree as follows: "1. That there is due on note and mortgage on property described in plaintiff's petition, made June 16, 1871, to N. B. Lord, $471.49, with interest from July 15, 1878, and $25 attorney fee. "2. That there is due on note and mortgage made on said property, February 24, 1872, by the Elmores to Charles H. Williams, $608.22, with interest at 10 per cent. per annum from July 15, 1878, and $25 attorney fee. "3. That there is due on note and mortgage made May 1, 1875, by defendants, on said property, to the Union Bank of Cedar Rapids, $2,329.84, with interest at 10 per cent. per annum from July 15, 1878, and $85 attorney fee. "4. That certain notes were given to O. A. Pray by defendant Elmore, and there is due thereon $6,354.70, with interest at 10 per cent. from July 15, 1878, and $100 attorney fee; that November 24, 1875, defendants gave to said Pray a mortgage on said real property, and to further secure the payment of said notes finds that on the same day defendants Elmores made a chattel mortgage on certain machinery which was afterwards placed in the mill situated on said real estate, and which constituted the machinery of said mill. "5. That June 21, 1875, a judgment was rendered in favor of James Leffell & Co. against defendants Elmores, in the district court of Floyd county, Iowa, and a mechanic's lien enforced against the water-wheel of said mill, situated on said real property, and that there is due thereon $655.41, with interest at 10 per cent. from July 15, 1878. "6. That during the summer of 1875 a mill was erected on the said real property, and that on the twenty-sixth day of February, 1876, Farnham & Lovejoy filed a mechanic's lien against said mill for materials furnished therefor, and the court enforces the same in the sum of $2,296.66, with interest at 6 per cent. from July 15, 1878. "7. That J. S. and A. G. Merrill filed a mechanic's lien February 9, 1876, against said mill for work done thereon, and the court enforces said lien in the sum of $619.26, with interest at 6 per cent. from July 15, 1878. "8. That William Brunton filed a mechanic's lien March 4, 1876, against said mill for work done thereon, and the court enforces said lien in the sum of $86.68, with interest at "9. That Wm. J. Little filed a mechanic's lien against said "10. That November 8, 1877, Farnham & Lovejoy filed a mechanic's lien on said mill and real estate upon which it was built, to secure an indebtedness from O. A. Pray, then the owner in fee of said mill and realty, for materials furnished in the erection of a new dam thereon, and the court enforces said lien in the sum of $1,298.67, with interest at six per cent. from July 15, 1878. "11. That the evidence fails to establish that plaintiff's mortgate was made for a pre-existing debt, and must be held to be ultra vires and void; that as no personal service was had on defendants Elmores in this state by plaintiff, and no appearance by them, no personal judgment can be rendered against either of them on plaintiff's notes, and hence plaintiff's petition must be dismissed. "12. That defendant C. E. Holt is the owner of the above claims and indebtedness originally due to N. B. Lord, C. H. Williams, O. A. Pray, James Leffell & Co., J. S. and A. G. Merrill, William Brunton, William J. Little, and Farnham & Lovejoy, and that such claims have been properly assigned to him. "13. That the mortgage made to N. B. Lord is the first lien on the real estate, but subject to mechanic's liens on the mill and the chattel mortgage on the machinery. That the mortgage to C. H. Williams is the second lien on the real estate, subject to same as above. That the judgment in favor of James Leffell & Co. is the first lien on the waterwheel in said mill, the third lien on the real estate, subject to liens on mill and machinery as above. That the mechanic's lien filed by Farnham & Lovejoy February 26, 1876, is the first lien on the mill and the fourth lien on the real estate, subject to mortgage on machinery. That the mortgage of the Union Bank is the fifth lien on the real estate, subject to liens on mill and machinery as above. That the mechanic's lien of J. S. and A. G. Merrill is the sixth lien on the real estate, second lien on the mill, subject to liens on the waterwheel and machinery. That the mechanic's lien of William Brunton is the seventh lien on said real estate and third lien on the mill, subject to liens on water-wheel and machinery. That the mechanic's lien of William J. Little is the eighth lien on said real estate and fourth lien on the mill, subject to liens on water-wheel and machinery. That the mortgage made by defendants Elmores to 0. A. Pray, November 24, 1875, is the ninth lien on the real estate, subject to liens on mill and machinery. That the chattel mortgage executed by Elmores to said Pray, on the machinery, is the first lien on the machinery described in said chattel mortgage. That the mechanic's lien of Farnham & Lovejoy against O. A. Pray, filed November 8, 1877, is a lien on said mill and real estate, subject to the liens hereinbefore specified. That the defendant C. E. Holt is entitled to a foreclosure of the mortgage hereinbefore described, as prayed, against the defendants hereinbefore set forth, and that the same relief be extended to the Union Bank, of Cedar Rapids. That the mechanic's liens be established in the order and priority as herein before set forth." Judgment in favor of cross-petitioner, C. E. Holt, against defendants Elmores for $11,181.20, and $150 attorney fee, with interest from July 15, 1878, at 6 per cent., on $3,091.38, and 10 per cent. on $8,089.82, with costs, and in favor of the Union Bank against defendants Elmores for $2,329.84, with interest at 10 per cent. per annum from July 15, 1878, and $85 attorney fee and costs. Decree that the interest of the other defendants in and to said real estate be barred and foreclosed; and further decreed, that an account or appraisement be made of the value of the improvements made by the mechanics, of the value of the machinery placed in the mill upon which the chattel mortgage exists, of the value of the realty upon which no mechanics' liens or chattel mortgage have been decreed. That then a special execution issue, and the said property be sold thereunder as an entirety, to satisfy said judgments, interest and costs, and the proceeds of said sale to be divided between or set apart-such a proportion to the water-wheel, to the machinery, to the mill building, and to the realty and appurtenances, aside from the wheel, mill building and machinery, in proportion to their respective values, and the liens upon each interest. Real estate, mortgage, mechanic and chattel mortgage liens to be paid according to their priority, and the balance, if any, to be applied to the payment of the mechanics' liens filed against the property in favor of Farnham & Lovejoy against O. A. Pray, which is made the junior and subsequent lien. To all of which findings, judgment and decree plaintiff excepts." The plaintiff and the defendant, the Union Bank of Cedar Rapids, appeal. The parties stipulated that the following questions only should be submitted to and determined by this court: "1. Whether the mortgage of the plaintiff sued on herein is ultra vires, or illegal or void, in whole or in part, for any cause, or whether valid in whole or in part. "2. If said mortgage shall be found to be valid, in whole or in part, its relation to or priority to the liens of the defendants. "3. Whether the decree of the court directing the sale of the whole property, building, ground, and real estate as an entirety, and directing an appraisement of the value of the improvements made by the mechanics and material men on the mill, and of the machinery placed in the mill, and of the realty, and a division of the proceeds of the sale of said property, in proportion to the values so ascertained, among the lien holders in the order of their priority found by the court, be legal or equitable as against plaintiff and defendant the Union Bank. "4. Whether the purchase by defendants Holt and Pray of the equity of redemption of said property from Elmores, while holding mortgages and liens thereon, and subsequently purchasing in other liens, worked a merger of their liens so as to displace and postpone them to the liens of the plaintiff and the Union Bank, and if such merger be found that the relation and priority of the liens of plaintiff and defendants shall be established and determined." Alford & Elwell, for plaintiff. J. S. Root, for defendant C. E. Holt. A. M. Harrison, for O. A. Pray and Leffell & Co. George F. Boulton and West & Easton, for Union Bank of Cedar Rapids. DAY J. 1. Is the plaintiff's mortgage ultra vires, and void, under section 5136, Revised Statutes United States? This question has recently been determined by the supreme court of the United States in the Union National Bank of St. Louis v. Mathews, & Otto, (98 U. S.) 621. In that case an injunction was obtained in the state court of Missouri restraining the bank from proceeding to sell under a deed of trust executed to the bank in security for a loan of $15,000. Upon writ of error to the supreme court of the United States |