FEDERAL

vol. 62.

for partition in all the . cqurts of the !!!tllte, I tPlnk it should be followed by this court, within the limits 'of allowance for counsel fees indicated by the decisions above cited. Motion granted, the amount of the allowance to be fixed by the court.

PORTER v. DA.VIDSON, Sheriff. (Circuit Court, North Carolina. August 4, 1894.)

w.n.

1.

CONFLICTING S1'ATE AND FEDERAL JURISDICTION TAKING PROPER1'Y FROM SHERIFF'S POSSESSION.

CLAIM AND DEMVERY-

Property in possession of a sheriff under process issued by a state court taken out of his possession in au action of claim and delivery In'the federal court. .
. ..'

2.

SAMin-.:.cPAMAGES.

But' the 'Rction of claim and delivery In the federal court may be maintained 'by; a third perS(1nin so far as it seeks to recover damages against sb.eriff for the wrongful· taking.

Tllls was an actioriof claim and delivery by Henry K. Porter againstS. W. Davidson,' .Jr., sheriff of Oherokee county, N. C. Defendant ,moved to set aside the service of summons, and to dismiss the complaint. ' , ' J. W..8;, R. L. Cooper,.for motion. Martin, contra. Before SIMONTON, Circuit Judge, and DICK, District Judge. PER· CURIAM. This is a motion to set aside the service of a summons,rand to dismiss the complaint upon thegronnd that the record discloses a want of jurisdiction in this court. The plaintiff is moHgagee of certain chattels in' the possession of George Porter & ,(30., the mortgagors, after condition broken. The defendant, the'l'lheriff of Chetokee county of North Carolina, had seiied and held ,the chalttels under warrants of attachment issued out of the courts of NorthCa.rolina against the mortgagors, the causes ,of action being debts alleged to be due by the mortgagors to the attaching creditors respectively. Pending the'suits in which the attachments were issued, the present plaintiff mortgagee brought his action of claim and delivery in this court,:setting forth the :fact that he is the owner of the chattels, and entitled to the posSession thereof. Thereupon, pursuing the praotice in North Caro'lina, he executed the proper undertaking, and the marsh8.1 of this :court took the chattels from the possession of the defendant sheriff, 'l1nd delivered them to the, plaintiff. The defendant has ftledhis answer, denying that plaintiff is the owner of the chattels, and settingup the fact that he is in possession of said chattels,under divers warrants of attachment issuing out of proper courts in NorthCaroUna, .said chattels being the·. property of George Porter & Co., the defendants in the said suits in which the attachments were issued. The question is, can thisS1lit of claim and delivery be maintained against the sheriff under these circumstances? It is well to keep in mind the precise question before us. The plaintiff chUms

· POR'J)ER V.' . DAVIDSON.

627

and has had accorded to him the right to take out of the possession of the state sheriff the chattels held by him under process from the state courts. rhe question is not as to the personal responsibility in damages to which the sheriff has exposed himself in executing the processes of attachment. In Taylor v. Carryl, 20 How. 583, the supreme court, in an opinion of recognized authority, held "that property seized by a sheriff under process of attachment from a state court, and while in the custody of the officer, could not be seized or taken from him by process in admiralty from the district court of the United States." The ratio decidendi was this:
"In the case ot conflicting authority under state and federal process, in order to avoid. unseemly collision between them, the question as to which authority should for the time prevail does not depend upon the rig-hts of the respective parties to the property seized,-whether the one was paramount to the other,-but upon the question which jurisdiction had first tachedby the seizure and custody of the property under its process."

In Freeman v. Howe, 24 How. 450, this doctrine was commented on, approved, and applied. In this last-named case the marshal of the United States court had attached ceMain property under warrants of atta·chment, and it had been taken out of his custody by the state's officer, under a writ of replevin issued out of the state court. The warrant of attachment had been directed, not against property specifically described, but commanded a levy as in cases of fi. fa. upon the property of the defendant. In that state of things the supreme court held:
"When property in taken and held liable under process, mesne or flnal, of a court of the United States, it is in custody of the law, and within the exclusive jurisdiction of the court from which the process issued for the purposes of the writ. The possession of the officer cannot be disturbed by process from any state· court, because to disturb that possession would be to invade the jurisdiction of the court by whosecommarid it is heid, and to violate the law which that jurisdiction is appointed to administer. Any person not a party to the suit or judgment, whose property has been wrongfully, but under color of process, taken and withheld, may prosecute by ancillary proceedings in the court wherein the process issued his remedy for restitution of the property or its proceeds."

Its process, the property is to be considered in the custody of the court, and under Its control, for the time being. No other court has the right to interfere with that possession, unless it be some court which may have a direct supervising control over the court whose process has first taken possession, or some superior jurisdiction."

Vice versa, the jurisdiction of the state courts will be maintained and preserved under like circumstances. The doctrine of this case was stated and approved in Buck v. Colbath, 3 Wall. 34], and the general principles reiterated: "Whenever property has been seized by an officer of the court by virtue ot

It will be noted that this doctrine is confined to the right of possession of the goods, and prevents only the disturbance of that possession. Says Covell v. Heyman, supra:
"All other remedies to which he [the claimantot the property] may be entitled against officers or parties, not involving the witbdrawal of the property or Its proceeds from the custody of the officer and the jurisdiction of the court, he may pursue in !lIlY tribunal, state or federal, having jurisdiction over the»arties or the subject-matter." 111 U. S. 179, 4 Sup. Ct. 355.

628

FEDERAL REPORTER,

\Tot 62.

And the same doctrine is distinctly stated in Buck v. Colbath. So, 11lso,·inLammon v. Feusier, 111 U;'S. 19, 4 Sup. Ct. 286, the court makes the same distinction: ''When a marshal, upon a writ of attachment on mesne process, takes property of a person not named in the' writ, the property is in his official custody, and under the control of the court whose officer he is and whose writ he is executing; and, according to the decisions 'of this court, the rightful owner cannot maintain an action of replevin against him, nor recover the property specifically in any way except in the court from which the writ issued;" quoting Freeman v. Howe, supra, and Krippendorf v.. Hyde, 110 U. S. 276, 4 Sup. Ct. 27. But "a person other than the defendant nl1Ined in the writ whose property is wrongfully taken may indeed' sue the marshal like any other wrongdoer, in any action of trespass, and recover damages for the unlawful taking, and neither the official character of the marshal nor the writ of attachment affords him any defense to such an action;" quoting Day v. Gallup, 2 Wall. 97; Buck v. Colbath, supra. The whole subject is exhaustively discussed in Covell v. Heyman, 111 U. S. 176, 4 Sup. Ct 355, and the doctrine and distinction above set out fully declared and established. The rubric of the case summarizes its conclusion. The possession by a marshal of a court of the ""nited States of property by virtue of a levy of an execution issued upon a judgment recovered in a circuit court of the United States is a complete defense to an action in a state court of replevin of the property seized without regard to the rightful ownership. 'I'he principle that, whenever property has been seized by an officer of the court by virtue of its process, the property is to be considered as in the custody of the court, and under its control, applies both to the taking under a writ of attachment on mesne process and to a taking under execution. The learned counsel for the plaintiff in his brief quotes Chief Justice Pearson in Jonesv. Ward, 77 N. C. 337, and cases confirming him,-Churchill v. Lee, 77 N. C. 341; Duke v. Markham, 105 N. C. 131, 10 S. E. 1003. But these were cases within the jurisdiction of the court which was in. possession of the goods. The claimants pursued their remedy within that jurisdiction,-a right recognized and pointed out in the cases in the supreme court of the United States. He also quotes and relies on Wood v. Weimer, 104 U. S.793; but that case turned upon the question whether replevin would lie anywhere against a sheriff who levied an attachment on goods. The court below held that it would not; but pending the appeal from this decision the supreme court of Michigan in King v. Hubbell, 42 Mich. 597, 4 N. W. 440, held that, although goods mortgaged could be taken, under an attachment, from possession of the mortgagor, the officer must to the mortgagee on demand, after inventory and appraisement completed, unless the attaching credo itors dispute the vaJidity.of the mortgage. Upon the strength of this decision the supreme court of the United States reversed the decision below. The present point was not raised. Indeed, the doctrine asserted by the supreme court would not have applied; Under the law of Michigan the sheriff who had attached mortgaged prop-

WILSONf'. PERRIN.

629

Dot tr· wait for any order of court, unless the validity of the mort· gage was denied. Wise v. Jefferis, 2 C. C. A. 432, 51 Fed. 641, seems to .be in conflict with the decisions of the supreme court of the United States. The chattels taken under process of claim and delivery in this case were in the hands of the defendant, a state officer, under process of the state cou'rts, were subject wholly to the jurisdiction of the state courts, and are not amenable w the process of claim and delivery out of this court. The language of the supreme court in Covell v. Heyman, 111 U. S., at page 182, 4 Sup. Ct. 355, canuot be quoted too often:
"The forbearance which courts of co-ordinate jurisdiction administered under a single system exercise towards each other. Whereby conflicts are avoided by avoiding interference with the of each other, is a principle of comity with perhaps no higher sanctioh than the utility which comes from concord. But between the state courts and those of the United States it ill something more. It is a principle of right and law, and therefore of necessi· ty. It leaves nothing to discretion or mere convenience. These courts do not belonlit to the same system. so far as their jurisdiction is concurrent. Although they eXist in the same space, they are independent, and have no .common superior. They exercise jurisdiction, it is true, within the same tel'dtory, but not In the same plane; and, when one takes Into its jurisdiction a thing. that res is as much withdrawn from the jUdicial power of the other as if it had been carried into a different territorial sover· .eignty. To attempt to seize it by a foreign process is futtle and void,"

erty was bound to deliver it to the mortgagee demanding it, and

It is ordered that the chattels tal{en in this case be returned to the custody of the defendant sheriff of Cherokee county, N. C. But, as has been seen, the cases go only to the possession of the res. A third party may pursue his remedy against the sheriff for damages in any court The proceedings of the plaintiff in this case by which he took from the possession of the sheriff the chattels levied on was ancillary, not in any way affecting the merits of the original case. That can go on without conflicting with any of the. cases quoted above. It is further ordered that so much of this notice as Beeks to set aside the Bervice of the Bummons or to dismiss the ·complaint ia refused.
WILSON et aI. v. PERRIN. (CIrcuit Court of Appeals, Sixth Circuit. No.18L June 3, 1894.)
CHATTEL MORT-

.1.

FEDERAL COURTS GAGES.

STATE LAWS 'AS RULES OF DECISION -

On the question of the validity of a chattel mortgage reserving the mortgagor's exemptions from execution under the laws of the state, the settled local law controls.
RESERVATION OF MORTGAGOR'S EXEMP-

:I.

CJlATTEJ, llQRTGAGES - VALIDITY TIONS FROM EXECUTION.

By the law of Michigan, a mortgage of a stock of goods, subject to all exemptions from execution to which the mortgagor is entitled under the laws of the state, is not invalid, even as to a creditor garnishIng the mortgagee before II. separation of the exempt portion, as the exemption la.w

REPOllTEB"vol.

62.

furl;I.Ishes themellns of separatio.: lW-d an,d the takes a defeasible title to the subject to selection of the $'oods whenmde by ilia mortgagor.
';

,

:

"

' . )

In,Er,rQr to the Circuit Court of the United States for ,the Western District 'of ' Th.l,3,:w",sanaction by Edward B. Wilson and others against lJruen;in which a writ of garnishment was issued against Joel J.PEi!z,rin, to whom Bruen had given a mortgage of his goods. Judgment was rendered:for plaintiff against defendant Bruen, but ontria,lor the, issue as to Perrin the judge directed the jury to findfor"b:W:t, and judgment for Perrin wasentel'ed on the verdict.. , Plaintiffs brought error. F1e,toher ,& Wanty,forplaintiffs in error. E.M. ,Irish, for defendant in error. Bef{)r¢'1;AFT aridLUB(i'ON, Circuit Judges. LUnTON, Circuit Judge. The question involved upon this writ of error 'concerns of a certain chattel mortgage executedbyGeorge T. Bruen, who was a merchant doing business in Kalamazoo, Mich., to the appellee, JoelJ. Perrin. It was made for the purpose of securing an indebtedness of $14,974.36, 'Y,hich amount was due by to :perrin. The property mortgaged. ,consisted of the entire, stock of dry goods, with' the furniture and other fixtures usually found in a dry-goods store, and also two horses, a buggy, a and certain harness. It wasmalk, on the 31st day of August,' 1893, .and was delivered to Perrin on,lthe 2d day of September whO date, took possession of the propertyd.escribed in it, aIld' on the 1st day of, theiollowing November he sold the entire property so mortgaged for the sum of $14;500. 1'he appellant Edward B. the thatthe mortgage! was void, and being a creditor of the mortgagor Bruen, be- . gan RSUit against him in the circuit court of the United States, for the western district 01 the 13th d,ay of September, 1893, and, under the practice in Michigan, sued out a writ of garnishment against Perrin, the mortgagee, who was then in possession of the goods. This writ of garnishment was taken out under section 8091 of Howell's Annotated Statutes, and is the same statute considered and construed in Treusch v. OUenburg,4 C. C. A. 629, 54 Fed. Rep. 867. On October 17, 1893, a judgment was rendered in favor of the plaintiff Wilson against the defendant Bruen for Tbecase then' came on for trial against the " garnishee defendant, Perrin.. The of was ,and is that the mortgage was v6id for '1.'he granting part contained this clause:
"All tile gOOds, cilattels, stock, In trll;<le,·f1.Jitures, and chattels and merchandise ot every' tiame and natUre; 'now in the store occupied by said first party, and IQlown..a!il.'120 West Moo Street,' in saidclty ot Kalamazoo, being the entU'estockotdt'y andsimUar lines carried hy, saidfil'lltparty, together with all tables" CQUIl-ters, aJ;ld ,two portable tumaces In said store; aillo, two hors.ll8 1)avld' and 'Dick,' aUI! the carriage horses di'lven by said

WILSON V. PERRIN.

.631

first party, one single top buggy, oae two-seat surrer, one set double harness, one single harness, one cutter,and all blankets and robes used In connection with said horses and carriages by said first party; also, the safe In said store. The said party of the first part also grants, bargains, sells, transfers, and assigns all the book accounts and bills receivable now on his books kept in con· nection with the business he has been conducting in said store, and owing to him, due and to become due, unto said second party, and authorizes said second party to collect the same in his own name, and to apply all amounts collected, less the expense of collection, upon the indebtedness already accrued upon the notes which this mortgage is given to secure."

At the conclusion of the instrument there is to be found the fol· lowing clause:
"The surplus or residue, If any, to belong and be returned to said first party; It being understood that this mortgage is made subject to all exemptions from execution to which said first party may be entitled under the laws of the state of Michigan, and that his exempt interest is not covered by this mortgage."

The judge presiding in the circuit court instructed the jury that the provision reserving the mortgagor's exemptions under the law of Michigan did not invalidate the mortgage, and that they should return a verdict for the defendant. The contention of the learned counsel for the appellant is that this "was not a mortgage of the entire stock of goods, including the exempt portion, with an added clause that the exempt portion might afterwards be taken out, but it was only a mortgage of that portion which should be left after the exempt portion had been separated." The insistance, therefore, is that inasmuch as the mortgagee was garnished before a separation of the exempt portion had been made, there was no means to determine which portion of the stock of goods was conveyed, and which was not. Under the exemption laws of Michigan, merchandise to the value of $250 is exempt from execution in the hands of a merchant. . The trial judge was of the opinion that the question thus presented was to be determined by the law of Michigan. If such a mortgage is valid either under the statute law of that state, or by the wellsettled law of the state as declared by its highest courts, then we quite agree that the local law is controlling. Bank v. Bates, 120 U. 8. 556, 7 Sup. Ct. 679; Means v. Dowd, 128 U. S. 273, 9 Sup. Ct. 65; Union Nat. Bank v. Bank of Kansas City, 136 U. S. 223,10 Sup. Ct. 1013; Etheridge v. Sperry, 139 U. S. 276,11 Sup. Ct. 565. In the case last cited the opinion was by !'1r. Justice Brewer. The case involved the validity of a chattel mortgage made in Iowa. After considering the decisions of the supreme court of that state which bore upon the question involved, the court came to the conclusion that t):le mortgage was valid under the law of Iowa. In discussing the question as to whether its validity was controlled by the law of the state in which the instrument had been made, the court said:
"The matter is not one of purely general commercial law. Whlle chattel mortgages are instruments of general use, each state has a right to determine for itself under what circumstances they may be executed, the extent of the rights conferred thereby, and the conditions of their validity. They are instruments for the transfer of property, and the rules concerning the transfer of property arP. primarily, at least, a matter of state regnlation. We are aware that thel:e is great diversity in the rulings on this question by the courts

632

J'EDERAL REPORTER,

vol. 62.

be our individual views as to what the law ought to be In respect thereto, there Is so much of a local nature enterlng·intochattel mortgages ·that this court will accept the settled law of each state as decisive in respect to any case arising therein." Pages 276, ·217,139 U. 8., and page 565, 11 Sup. Ct.

ot the several states, but, whatever may

It becomes, therefore, necessary that we shall ascertain what is the settled local law, as evidenced by the decisions of the highest courts of the state of Michigan. In the beginning we may as well say that we attach no particular importance to the suggestion that the conveyance is limited to what should be left after the exemptions should be set apart. The conveYlUlce is of the entire stock of merchandise, subject to the mortgagor's right of exemption. This is the plain and obvious meaning. As to the exemptions, it would seem that the mortgagee would take a defeasible title, subject to be defeated upon separation of the statutory amount of exemptions from the stock. In the case of Hollister v. Loud, 2 Mich. 323, an assignment in trust to secure certain creditors was attacked upon the ground that the assignors "reserved from the general mass of the property such of it as was by law exempt from execution." This was held not to affect the deed. The court, as to this, said:
"As to the property which was for the time being withheld, and which was allowed to the assignors by the assignees as being exempt by law, we say, if the property was not exempt, It, at the least, was assigned, and vested In the trustees. The assignees must settle that question with the assignots. The creditors will hold them responsible if the property was not exempt. It was notdone secretly. The parties attempted to act under the law."

We see no substantial difference between the legal effect of the language used in the mortgage before us and that sustained in Hollister v. Loud. In Smith v. Mitchell, 12 Mich. 180, an assignment was attacked as void because it purported to convey all of the assignor's stock in business, goods, chattels, merchandise, etc., "except, however, our household furniture, and property exempt by law from execution." The court said:
"The assignment Is not void on Its face, for excepting property exempt from execution without specifying it. A bona tide selection is as practicable here as under a levy."

To say that certain of the property which would pass under the general description is not covered by the conveyance, because of the mortgagor's exemptions, is nothing more than what is meant when out of the conveyance is "excepted" or "reserved" the bargainor's exemptions. In Brooks v. Nichols, 17 Mich. 38, the assignment seems to have been a general one, and to have included all of the assignor's property, real and personal, "saving and excepting such as is exempt from seizure and sale under execution by the laws of the state." Cooley, C. J., in pronouncing the opinion of the court as to the' effect of such an exception, said:
. "We are of opinion that the circuit judge erred in not rendering judgment tor the plaintitr on the special verdict.. That verdict established the bona fides ot the assignment of McDonald, and the only question that could remain

.

WILSON ". PERRIN.

G33

was whether It was volt! In law by reason of the omission to select out the exempt property. This question we regard as settled by the decisions of this court in Holllster v. Loud, 2 Mich. 323, and Smith v. Mitchell, 12 Mich. 180. The supposed difficulty of sustaining an assignment which assumes to transfer property not separated from a larger quantity is not met with in these cases. The assignment is In eJrecta transfer of the whole property, subject to a right in the assignor to select out a crtaln portion or certain arti· cles, which the law, on the selection being made, absolutely sets aside for the benefit of himself and his family. The assignment passes for the benefit of creditors the same interest, precisely, which an officer would seize by virtue of execution, and there is no more difficulty in making the selection of exempt property in the one case than in the other. The principle is not new. Transfers of the debtor's property, under bankrupt and insolvent laws, are subject to the like right of selection, and we are not aware that any difficulty has been supposej'i to exist in the title of the assignee in those cases.· He succeeds to the rights of the bankrupt or insolvent; acquiring, however, so far as exempt property is concerned, a defeasible title, Which is divested when the selection Is made. 'rhe trustee in a wluntary assignment stands on the same footing, and Is entitled to the like protection. The judgment of the court below should be reversed, and judgment rendered for the plaintiff for six cents damages, and the costs of both courts."

A distinction is suggested to exist as to the effect of such an exception when found in a chattel mortgage, and the cases of Giddey v. Uhl, 27 Mich. 94, and Richardson v. Lumber Co., 40 Mich. 203, are cited. We find nothing in either of these cases in the slightest degree justifying such a distinction. In Giddey v. Uhl, cited above, the chattel mortgage in question described the mortgaged property as follows:
"All the following described household furniture and personal property now upon the premises No. 25 George street, in the city of Detroit, owned and occupied by the Whittleseys aforesaid, viz. 1 sofa, 1 lounge, 2 marble-top tables, 2 easy chairs, 3 parlor chairs, 1 black walnut center table, 2 card tables, 1 whatnot, 2 cane chairs, 1 secretary, 1 lounge, carpets. bedding, bed-room furniture, and other personal property in and about said house and premises, except herefrom such personal property as is exempt from execution by the laws of the state of Michigan, to wit, stoves in use, family pictures, library and school books, clothing, provisions, fuel, and sewing machine, also excepting household goods, furniture and utensils therein, of the value of two hundred and fifty dollars."

Ohristiancy, O. J., as to the effect of the reservation, said:
mortgage, of household goods, furniture, and utensils to the value of two hundred and fifty dollars renders the mortgage entirely uncertain as to the property intended to be mortgaged, and that the mortgaged property cannot, for this reason, be identified; and, if this exception applies to and affects the specially enumerated articles, this may be a very pertinent objection, or might be so if it not appear that the mortgagors had at the time two hundred and fifty dollars' worth of goods, furniture, and utensils besides the enumerated articles and those exempt from execution. But, construing this mort· gage in the light of the facts found, we think it appears with reasonable certainty that this exception was intended to apply to the property mortgaged by the general description only, and not to the articles specifically enumerated. We think the intention was to mortgage the specific articles unconditionally; that the general description which follows the specific enumeration was intended to give so much further security as the property thus generally described would give, after deducting from it what was exempt from execution. and two hundred and fifty dollars' worth of household goods, furniture, and utensils besides. This was the adopted by the circuit judge, and we think it clearly correct."
"It Is insisted by the plaintiffs in error that the exception contained In the

634

FEDERA:L:REJilO;RTER,

vol. 62.

. In the das.e of' RichardsoilwLumber Co., 'above cited, there was a cQIii;est;,:petween two 'mortgAgees, claiming under illsti'qinents of different :aates. The mortg3:gorowned a large quantity of logs in Thunder Bayl'iver. .At the time of the execution of the first mortgage,·itappears "they had over a million feet of logs marked '0 dot a chatteFmortgage on "one hundred thousand 'feet of white.pul.esaw logs now on the North Branch, so called, of Thunder· Bay .river." "These logs were further described as winter of 1873-74, but the particular havingbeeD .critduring were in po. way designated, deSCrIbed Of separated from the entire mass bearlDg the same mark." Subsequently, the mortgagors gave another mortgage upon the entire mass of logs, and thus the second mortgagee acquired an in· terest or' any designation of the logs first intended to he; inp,rtgaged had .1leenlllade. ,The court held that inasmuch as no separation had been made, and inasmuch as the mort· gage furnished no means and made no provision by which the logs mortgageq be separated from those not mortgaged, the subsequent mortgageE;l of the' entire mass was entitled to preference. cases that in the least weakens We see nothing .in either of the force an,d e;lfect of the rule as declared in the earlier cases, which we have heretofore cited. Under section 1686, How. Ann. St., the mortgagor was entitled to select from his stock in trade goods and merchandise to the value of $250. The selection is to be made by the debtor entitled to the exemption. Brpoksv. Nichols, supra; Town v. Elmore, 38 Mich. 305. Th'!1s, .wehave tbe ,means of separation and' identification furnished by the statute under which the reservation is claimed. This obviates aU the difficulties pointed out by the court in RichardCo., supra, and which operated to make the mortson v., gage of parto·t It mass void as incapable of identification. "Certum est quod certum,l'eddi potest." The effect of the mortgage involved in tbis case was to convey to the assignor the entire stock of merchandise, subject to the right of the mortgagor to select therefrom goods to the value of $250; the mortgagee takblg a defeasible title to the entire stock, subject to be defeated by a/Jelection of the exempt goods, when such seledion should be made by the mortgagor or his agent. We see no difficulty" whatever, under the well-settled law of Michigan, in concluding that such a mortgage, to the debtor's right of affords no more difficulties in a separation of the property mortgaged from that which is exempt than in the case of a levy, or in the case of a ba.nkruptcy, or in. the case of a general assignment for the benefit of creditors. The judgment must therefore.be.affirmed.

STAPLES v. RYAN. (CIrcuit Court, D. Colorado. No. 3.019.
MEOHANICS' LIENS-SALE-VALIDITY.

July 30, 1894.)

In an action to enforce a mechanIc's llen on defendant's entire property, in which several interveners claimed liens against the same, and one claimed a lien against a portion only, a decree was entered fixing the amount due each claimant, and adjudging that each have a lien therefor against the property described in his complaint, and ordering the entire property to be sold to satisfy the liens. All the parties assented to the decree, and no motion was made to set aside the'sale thereunder. Held, that the sale was not void on the ground that by such sale the person claiming a lien against only a portion of the property shared in the proceeds from property of his complaint did not give the court jurisdiction.

On the 1st January, 1885, the Bassick Mining Oompany held title by United States patent to the Maine lode and mill site, the Triangle lode, the Spring lode, the Frank lode, tbe Georgia lode and Lookout mill site, the Nemeha lode, and the Lookout lode, situate in Custer county, Colo.
On the 1st of June, 1885, W. D. Schoolfield commenced suit in the district court of Custer county against the Bassick Mining Company and other defendants to enforce a mechanic's lien for work performed upon the lodes in "question. In this SUit, certain other lien claimants intervened, setting up various claims against the Bassick Mining Company. On June 15, 1885, referees were ordered to take testimony and report on all the lien claims against the which resulted in a decree adjudging to certain of the defend,ants sums according to their proved claims, and ordering the sheriff to sell so much of the property of the company as would pay the several judgments mentioned in the decree. The sheriff advertised all the property of the company for sale at public auction, and it was sold on July 11, 1885, and struck 'off and sold to Clapp Spooner for $37,599.85, and a certificate of sale issued to the buyer. On June 2, 1885, Vorreiter commenced suit by attachment against the Bassick Mining Company to recover $3,152. Upon this suit the plaintiff obtained judgment, which judgment was assigned to George H. \Vhite, who on January 16, 1886, caused execution to issue and levy to be made upon the property of the Bassick Mining Company, and on the same ,day paid to the sheriff the sum of $37,599.85 and costs, together with interest , thereon from J'uly 11, 1885, for the purpose of redeeming, as a judgment creditor, from the sale to Spooner, and then caused the property to be advertised for sale under this execution; but before the time appointed for the 'sale the Hendrie & Bolthoff Manufacturing Company instituted suit in the same court against the said George H. White and ,others to restrain and enjoin said sale. A temporary writ of injunction was granted, which injunction was afterwards dissolved, and the suit dismissed. On :May 13, 1886, sale was made under the 'Vhiteexecution and levy, and the sheriff duly sold the property, and '''hite bought it in for $60,000, paid the money to the sheriff, and received certificate of purchase from him. On May 14, 1886, James Staples, the plaintiff herein, was the assignee of a judgment duly obtained by Ratcliff Bros. against the Bassick Mining Company, and as a judgment creditor, and with the purpose of redeeming from the White sale, paid to the sheriff the sum of $UO,OlU.67, being the sum of the White purchase and interest to date, and thereupon caused the property of the company to be again lCYied upon and advertised for sale under the said execution. Afterwards. and before the time fixed for this last-mentioned sale. the Union Iron-Works Company, claiming to be. a judgment creditor of the Bassick Mining Com· pany. instituted suit in the district court of Custer county against George H. 'White, James Staples, the Bassick Mining Company, and the sheriff, seeking