and decreed the foreclosure of the Henry P. Kransz and Inman trust deeds. They prayed foreclosure of their trust deeds and claimed they were prior to the liens of defendants in error.

The statutory notices of the liens of the defendants in error were not given until after the original contractors were adjudicated bankrupts, July 12, 1916, and it is contended for that reason the adjudication in bankruptcy defeated the liens of defendants in error. The present lien statute, which governs this case, provides (paragraph 35) that a sub-contractor, unless it is provided otherwise in the contract between the owner and original contractor, shall have a lien "from the same time, on the same property as provided for the contractor, and, also, as against the creditors and assignees, and personal and legal representatives of the contractor." The sub-contractors' liens existed by virtue of the contract between the owners and the original contractors, which contained no provision against liens, but the lien itself was created by statute. VonPlaten v. Winterbotham, 203 Ill. 198; Kelly v. Johnson, 251 id. 135.

Some confusion has arisen as to when the lien arises. and whether it exists before the statutory notice is given. That question received the consideration of this court in Brown Construction Co. v. Central Illinois Construction Co. 234 Ill. 397. It was there said: "In proper case the lien exists whether notice is given or not. The proviso in section 9 that the lien shall not attach unless notice shall have been served or filed, 'simply means that the incipient or inchoate lien of the sub-contractor will cease,-not ‘attach' to the property in the sense of becoming a fixed lien thereon,-if the notice prescribed by the statute be not given. (St. Louis and Peoria Railroad Co. v. Kerr, 153 Ill. 182.) As is said in that case, any other construction of the statute would render it inoperative, because it would make the statutory lien subject to any other lien placed upon the property, or any conveyance thereof made, after the beginning

of the work and before the notice was served or filed." (See, also, Boyer v. Keller, 258 Ill. 106; Rittenhouse & Embree Co. v. Warren Construction Co. 264 id. 619.) The lien given by the statute exists from the date of the original contract, but notice of the claim of lien must be given within the time required by statute to preserve and enforce it. The liens of defendants in error were not defeated by the original contractors being adjudged bankrupts. I Loveland on Bankruptcy, 495, 496; Paddock v. Stout, 121 Ill. 571.

The decree correctly found that the liens of defendants in error which attached March 15, 1916, were prior to the liens claimed by Henry P. Kransz and Inman by virtue of the trust deeds. The Kransz trust deed was not recorded until April 19, 1916, and the first money advanced thereunder was $88.40 on April 21, 1916. The trust deed to Huberty, now held by Inman, is dated April 12, 1916, and was not recorded until May 4. It is not disputed that the notes given by Boss and secured by the trust deed to Huberty were for the balance of the contract price for completing the building. Seven thousand five hundred dollars were to be paid from the Henry P. Kransz loan, leaving a balance of $3000. Boss testified, and is not contradicted, that about the time he gave the notes for $2200, and the trust deed to secure them, he had a talk with Huberty; that Huberty requested him to secure the balance of the contract price by notes secured by second mortgage on the property and they would complete the building; that he (Boss) paid the contractors $800 cash, executed the notes for $2200, secured by the trust deed, and delivered them to Huberty. The consideration for the notes was the completion of the building by Huberty & Loheinrich. They never performed their agreement but abandoned the work after receiving from the Henry P. Kransz loan a little over $6000 and from Boss $800. The consideration for the notes therefore failed. The notes were negotiable instruments, and Inman appears to have purchased them in good faith with

out notice of any defense Boss might have to them. The trust deed, however, was not assignable by the statute or the common law. A person buying a mortgage takes it subject to all the infirmities to which it is liable in the hands of the mortgagee, and in equity the mortgagor is entitled to every defense against the assignee which he could have made against the mortgagee himself. (Olds v. Cummings, 31 Ill. 188; Chicago Title and Trust Co. v. Aff, 183 id. 91; Schultz v. Sroelowitz, 191 id. 249; McAuliffe v. Reuter, 166 id. 491.) Inman testified he made no inquiry of anyone before buying as to what the notes were given for; that he understood Boss was erecting a building and that the money he paid for the notes was to be put into the building. It seems clear that the consideration for the notes having failed, Boss would have a defense in equity against the foreclosure of the trust deed by Huberty & Loheinrich, and under the authorities above referred to and many others found in our Reports he could interpose that defense against Inman. We are of the opinion the circuit court and Appellate Court erred in holding the trust deed held by Inman was a lien and enforceable.

Inman has filed no brief in this court nor did he file one in the Appellate Court. The decree gave him a lien subject to the liens of defendants in error, Peter P. Kransz and Henry P. Kransz, and as a question of practical benefit it is probably of little importance to the parties whether Inman's trust deed is held to be a lien or not. But Boss resisted it in the circuit court and in the Appellate Court, and is contending in this court that the consideration for the notes secured by the trust deed having failed, the trust deed cannot in equity be held a lien and enforceable, and he presents the question properly for our decision.

It is insisted by plaintiffs in error that the decree making the trust deed to Peter P. Kransz to secure the receiver's certificates a second lien and subject to the liens of defendants in error was erroneous, and that said trust deed

should have been decreed to be a first lien. Peter P. Kransz was not made a party to the litigation in the circuit court and was not a party to the appeal to the Appellate Court but filed a brief in that court. The Appellate Court said his right to be heard on the question was doubtful but considered and passed on his claim, affirming the decree of the circuit court giving him a lien subject to the liens of defendants in error. He joined in the petition to this court for the writ of certiorari, which was allowed, and we will consider his claim for a first lien on the property.

Henry P. Kransz asked the appointment of a receiver with power to borrow money to complete the building on receiver's certificates secured by a trust deed on the property which should be a first lien thereon. Defendants in error objected but the court entered an order to that effect. Henry P. Kransz, as we understand, is not complaining that the trust deed securing the receiver's certificates was adjudged a prior lien to his trust deed, but he unites with Peter P. Kransz in insisting the trust deed given to secure the receiver's certificates should have been given priority over all other liens.

Section 12 of the Lien act authorizes the court to appoint a receiver for property on which liens are sought to be enforced, in the same manner and for the same causes and purposes as in cases of foreclosure of mortgages as well as to complete any unfinished building when it is deemed to be for the best interests of all the parties interested, and it is contended the power is implied to make the appointment effective by making the receiver's certificates a first lien in such cases as this. The authorities are not altogether in harmony but the weight of them is that ordinarily the rule on this subject, while universally recognized and applied to railroads and public service corporations, will be exercised in cases of individuals and private corporations with great caution, but that when circumstances seem to warrant, the same rule will be applied in cases of private

persons and corporations. By the showing made on the application for the appointment of the receiver there was due on the Henry P. Kransz trust deed and notes about $8000 besides the liens of defendants in error, aggregating more than $2000; that the building was without doors and windows and the floors had not been laid; that the owners. were unable to complete the same; that it would require at least $3500 to complete the building; that unless it was completed it would greatly deteriorate in value, and it was represented to be for the best interests of all the parties claiming liens, as well as for the best interests of the owners, that a receiver be appointed with power to borrow money to complete the building, issue receiver's certificates therefor and secure them by a trust deed, which should be a first lien on the premises. The court entered an order accordingly. John L. Lukanitsch was appointed receiver and borrowed $4200 from Peter P. Kransz, for which he gave receiver's certificates secured by trust deed. It is true, defendants in error objected to the order, but they did not prosecute an appeal from it and the order was never reversed or set aside. The court had jurisdiction of the subject matter and of the parties, and its order was a valid, binding order unless reversed or set aside and is not subject to collateral attack. Under and by virtue of the order the receiver borrowed the money and expended it in the completion of the building, which must have been known to defendants in error. Their right now to be heard in opposition to that order and decree is, to say the least, doubtful. (Humphreys v. Allen, 101 Ill. 490.) Presumably the court was of opinion the order was for the best interests of all the parties interested, and we are of opinion the order is controlling in determining the priority of liens, and the circuit and Appellate Courts erred in holding otherwise.

It cannot be said from this record that the order was even erroneous. In Knickerbocker v. McKindley Coal Co.