110 SALE AND MORTGAGE. 



there is some question as to what constitutes such consent'. 

 Thus, it has been held that the mere fact that the mortgagor 

 was allowed to retain possession of the mortgaged animals, 

 does not show the mortgagee's consent to have them kept 

 or fed by another f^^ nor does the knowledge that the prop- 

 erty had been subsequently placed in the hands of such third 

 person.^^* But if the mortgagee may be presumed from the 

 express contract and the circumstances of the case to have 

 understood that the mortgagor would place the animal with 

 a stable-keeper to be boarded, and makes no objection, his 

 consent will be implied and the keeper's lien will have pri- 

 ority.^^'' 



On the other hand, the question of priority has been settled 

 in favor of the agistor or keeper by reason of the wording of 

 the statute giving the latter his lien, and it has been held that 

 where the intent of the statute was to give a lien as against all 

 persons, that intent will prevail as against a prior mort- 

 gagee.^^^ Thus, where a statute gives a lien for the care and 

 keeping of horses, provided notice be given to the owner of 

 the intention to claim such a Hen, and notice is given to the 



64 id. 239; Miller v. Crabbe, 2 Mo. App. Repr. 1371; First Nat. Bk. v. 

 Scott, 7 N. D. 312. 



And see Lee v. Vanmeter, 98 Ky. i; Bean v. Johnson (Ky.), 32 S. W. 

 Rep. 17s; Howard v. Burns, 44 Kan. 543; Vining v. Millar, 109 Mich. 

 205. Contra, Case v. Allen, 21 Kan. 217, expressly disapproved of in 

 Sullivan v. Clifton, McGhee v. Edwards, supra; Willard v. Whinfield, 

 2 Kan. App. 53. 



^'^ Wright V. Sherman (S. D.), 52 N. W. Rep. 1093, 53 id. 425; Howes 

 V. Newcomb, 146 Mass. 76; Cleveland v. Koch, 108 Mich. 514. 



A mortgagor of cattle cannot recover for grain fed or stabling given 

 to the cattle, nor for the services of his minor child, living in his family, 

 and not then emancipated, in caring for such cattle; nor can he, by sub- 

 sequently emancipating the child, give him a cause of action which he 

 did not have when he rendered the services: Kreider v. Fanning, 74 111. 

 App. 237. 



^™ Ingalls V. Vance, 61 Vt. 582. See Ingalls v. Green, 62 id. 436. 



'"Lynde v. Parker, 155 Mass. 481. And see Woodard v. Myers, is 

 Ind. App. 42; Bowden v. Dugan, 91 Me. 141; Farney v. Kerr (Tenn Ch 

 App.), 48 S. W. Rep. 103. 



'™ Jones Chat. Mort. § 474. 



