PKIORITY OF THE MORTGAGE LIEN. HI 



mortgagee as well as to the mortgagor in possession, it has 

 been held that the lien may be enforced, as it was created, not 

 by the agreement of the mortgagor, but by the statute which, 

 being in force when the mortgage was executed, entered into 

 it,^^** So where a statute provided that the keeping of ani- 

 mals at the request of the "owner or lawful possessor" should 

 create a lien, this was held to apply to a request made by a 

 mortgagor in possession and to give priority to such lien.^*" 

 And where a mortgagee must by law take possession im- 

 mediately after the maturity of the mortgage, it has been held 

 that an agistor's lien on mortgaged horses remaining in the 

 mortgagor's hands has priority over the claim of the assignee 

 of the past-due notes secured by the mortgage.^*^ But 

 where the lien of a feeder of stock is prior to a chattel mort- 

 gage taken with knowledge that the stock was on the feeder's 

 ranch, the former lien prevails.^*^ The court held in the case 

 last cited that it was not necessary to decide whether a sub- 

 sequent agistor's lien was in that State paramount to a mort- 



"" Corning v. Ashley, 51 Hun (N. Y.) 483, 121 N. Y. 700, distinguish- 

 ing Bissell V. Pearce, 28 N. Y. 252, supra, on the ground that there the 

 mortgagor was not allowed to create a lien by his own agreement, 

 whereas here the statute charged the mortgagee with knowledge of the 

 lien. 



^'° Smith V. Stevens, 36 Minn. 303. In a later case, — Meyer v. Berlandi, 

 39 id. 438, 444, — this decision is said to rest "upon the doctrine of agency, 

 ^authority, implied from the circumstances, from the mortgagee to the 

 mortgagor to create a lien for such a purpose." 



In Hanch v. Ripley, 127 Ind. 151, commenting on the same case, it is 

 said that the court held "that the mortgagee took his mortgage with a full 

 knowledge that under the law the mortgagor might create an agister's 

 lien against it superior to his mortgage and hence was bound thereby." 



And in Sullivan v. Clifton, 55 N. J. L. 324, it is said: "Under that 

 statute, no other view could reasonably be taken." 



But Smith v. Stevens is expressly disapproved of in McGhee v. Ed- 

 wards, 87 Tenn. 506, and several of the other cases cited supra. 



See also Case v. Allen, 21 Kan. 217; Aylmore v. Kahn, 11 Ohio Circ. 

 Ct. 392; Vose V. Whitney, 7 Mont. 385; Colquitt v. Kirkman, 47 Ga. SSS; 

 Auld V. Travis, 5 Colo. App. 535. 



^" Blain v. Manning, 36 111. App. 214. And see Shannon v. Wolf, 173 

 111. 253. 



'" Tabor v. Salisbury 3 Colo. App. 335. 



