4. That on the second of December, 1867, the county treasurer sold said premises for said taxes, viz., $29, to Ross and Hammer.

"5. On the thirtieth of October, 1872, the premises not having been redeemed, the treasurer executed to L. W. Ross, assignee of the certificate, a tax deed, regular in form, which was duly recorded twenty-ninth of July, 1878.

"6. On the twentieth of November, 1875, J. T. Baldwin, grantee of said Ross, took possession thereof under said tax deed, claiming to be owner, and continued in actual possession.

7. For several months before the twentieth of November, 1875, the premises were vacant, no one being in actual possession.

"S. Plaintiff has not contested ownership with any one claiming under said tax deed, or in any manner disputed their right of possession since possession was taken by Baldwin."

From these facts the court found, as legal conclusions, "that there has been a breach of the covenants against encumbrances and of warranty in deed of defendant to Treadway; that plaintiff is entitled to recover therefor, and the measure of recovery is the consideration, to-wit, $990, with six per cont. interest from date of eviction, namely, March 20, 1875." Judgment was rendered in favor of plaintiff, pursuant to these findings. The defendant excepted and appeals.

Sapp, Lyman & Ament and Mynster, Davis & Mickel, for appellant.

John H. Keatley and G. A. Holmes, for appellee.

DAY, J. The plaintiff does not claim damages from his immediate grantor, Treadway, but from Baughn, the grantor of Treadway. The petition alleges that Baughn conveyed the premises above set out to Henry Treadway, and that Treadway conveyed said premises to the plaintiff, and the court so found. The exhibits attached to the petition, and made a part thereof, show that Baughn conveyed to Treadway 18 feet and 10 inches off the easterly side of lot 149, being the same width the full depth of said lot from Broadway to Pierce street; and that Treadway conveyed to the plaintiff 19 feet and 5 inches off the easterly side of lot 149, and extending back 813 feet, or half the distance from Broadway to Pierce street. So that. whilst the plaintiff, as shown by his petition, is the grantee of only one-half of the property conveyed by Baughn to Treadway, he has, by the judgment of the court, recovered the entire consideration paid Baughn, with interest

at six per cent. from the date of eviction. This is clearly

erroneous.

The plaintiff should recover of the $900 only in the proportion of value which the part of lot conveyed to him bears to the whole lot; for if the title to the balance of the lot fails it is clear that Treadway, or his grantee, should be indemnified, and it is equally clear that Baughn cannot be made liable to a greater extent than the consideration money and interest. Appellee insists, however, that the burden is upon the defendant to establish the relative value of the part of the lot conveyed to plaintiff, and that, as no such proof was introducd, the court properly charged the defendant with the consideration received for the entire lot. This position is not correct. The plaintiff asks relief, and the burden of proof is upon him to establish all the facts showing that he is entitled to relief, and to what extent.

The judgment is reversed.

GEORGE HAYWOOD & SON, Appellees, vs. MICHAEL O'BRIEN and others, Appellants.

Filed December 8, 1879.

A lease for a term of years may, with all the rights of the landlord thereunder, be assigned; following Lufking v. Preston, 3 N. W. REP. 675. Appeal from Clinton district court.

The petition states that Robert Huffman, by an instrument in writing, leased certain premises to the defendants for a term of years, the rent to be paid annually, in money, and that the lease had been assigned to the plaintiffs. The rent being unpaid, the plaintiffs asked that a landlord's attachment be issued, which was done, and certain property of the defendants attached. The defendants moved the court to quash the attachment, on the grounds in substance that the lease was not assignable, and that the relation of landlord and tenant did not exist between plaintiffs and the defendant. The motion was overruled, and the defendants appeal.

John J. Mullany and Aylett R. Cotton, for appellants. J. S. & D. J. Darling and W. W. Stevens, for appellees. SEEVERS, J. It was held in Lufking & Wilson v. Preston, 3 N. W. REP. 678, that leases like the one in question were assignable, and that the assignee was entitled thereunder to the rent. This being true, we think it follows that the assignee v3—35 (no. v)

(545)

is entitled to a writ of attachment, as provided by statute. The assignment of the lease carried with it the lien of the lessor, and all the remedies for its enforcement.

Affirmed.

JOHN R. STUART, Appellant, vs. JOHN HARRISON and others,

Appellee.

Filed December 8, 1879.

A vendor's lien is inconsistent with a mortgage on the land sold for the purchase money, and the taking of such mortgage by the vendor of real estate is to be deemed an unmistakable waiver of such lien.-(ED.

Appeal from Clinton district court.

The petition states that Alexander Stuart sold and conveyed to the defendants certain described real estate; that a certain portion of the purchase money was secured by mortgage on the real estate conveyed; that afterwards the mortgage, as to a portion of the land, was released for the purpose of enabling the defendants to borrow certain money from the school fund, and secure the same by a mortgage on that portion of the premises so released. The mortgage and debt secured thereby are the property of the plaintiff. Among other appropriate relief it was asked that a vendor's lien be established against that portion of the premises that had been released from the lien of the mortgage. To so much of the petition as asked a vendor's lien, there was a demurrer on the ground that the facts alleged did not entitle the plaintiff to such relief. The demurrer was sustained, and the plaintiff appeals.

N. Corning, for appellant.

No appearance for appellees.

SEEVERS, J. Whether a vendor's lien should be regarded as waived, because a mortgage has been taken on other property, is not in this case. But where a mortgage is taken on the same property sold, it evinces, we think, an unmistakable intent on the part of the vendor to waive the lien. The latter is a mere equity, and must be regarded as merged or displaced by the mortgage. The two are inconsistent, and cannot exist and be enforceable at the same time. Young v. Wood et al. B. Mon. 123, is precisely in point, and we are content to follow it without restating what has been so well said in that case.

Affirmed.

FIRST NATIONAL BANK OF WATERLOO, Iowa, Appellant, vs. ALEX. ELMORE and others, Appellees.

Filed December 9, 1879.

A mortgage taken by a national bank to secure a contemporaneous debt or future advances is not void. Relative priority of certain liens determined. Mill building involved in this case, erected subsequent to plaintiff's mortgage, held to be such an independent structure that mechanics' liens thereon take preference to plaintiff's mortgage. Rule that where a lien

holder purchases the legal title there will be no merger, if it is his intention or interest that there should not be, applied. Chattel mortgage upon the mill machinery involved in this case, executed before such machinery was placed in the mill, held, a valid lien thereon. Decree of court below that the property in controversy in this case be sold as an entirety, and the proceeds apportioned to mill building and realty in proportion to their respective values and the liens upon each interest, held, erroneous. [ED.

Appeal from Floyd circuit court.

The plaintiff filed a sworn petition in equity, alleging that it is a corporation organized and doing business under an act of congress; that on the first day of December, 1874, the defendant Alexander Elmore made and delivered to the cashier of plaintiff his promissory note for $500, payable on demand; that March 3, 1875, Alexander Elmore made and delivered to the cashier of plaintiff his other promissory note in writing for $213.80, payable two months after date; that in order to secure the payment of said notes and any further sum that defendant might then or thereafter owe plaintiff, the defendants Alexander and Adaline J. Elmore executed and delivered to the cashier of plaintiff their mortgage upon certain real estate described, embracing the water-power of defendants, with grist-mill, dwelling-house, cooper shop, and all buildings and appurtenances thereto belonging. Judgment is prayed for the amount of the notes, and $65 attorney's fees, and for a decree foreclosing said mortgage, and establishing its priority over the liens of the defendants.

The defendants Alexander Elmore and Adaline J. Elmore answered, denying that there is any sum due plaintiff over $682. The Union Savings Bank, of Cedar Rapids, answered, alleging that the defendants Alexander and Adaline J. Elmore are indebted to it in the sum of $1,800, on a promissory note executed to the cashier of defendant, November 4, 1875, secured by mortgage of the same date, on the same property described in the plaintiff's petition. This answer further alleges that the mortgage from the Elmores to the plaintiff was taken in violation of sections 5736 and 5737 of the

Revised Statutes of the United States, relating to National Banks. The defendant prays judgment against Alexander and Adaline Elmore for the amount of said notes and $150 attorney's fee, and that the mortgage be foreclosed and decreed superior to plaintiff's claim, and that plaintiff's mortgage be declared void and inoperative as a lien.

The defendant Otis A. Pray filed his answer, alleging that in November, 1875, he sold and delivered to the defendants Elmores a bill of machinery for a flouring mill, amounting to the sum of $5,000, which was placed in the mill situated on the premises described in the plaintiff's petition; that before the machinery was placed in said mill the defendants Alexander and Adaline Elmore gave defendant a mortgage, to secure the purchase money thereof, on said machinery, in the sum of $5,000, which was duly recorded December 18, 1875. This defendant also alleges that the mortgage to plaintiff was taken in violation of the statutes of the United States as to national banking, and is void. Defendant prays that his lien on the machinery be decreed to be the senior lien.

The defendants James Leffell & Co. answered, alleging that on the twelfth day of September, 1872, they filed a mechanic's lien upon the real estate described in plaintiff's petition, to secure the payment of $517; that on the twenty-first day of June, 1873, they recovered judgment against said Elmores thereon for the sum of $482.48, and obtained the establishment of their mechanic's lien for the amount of said judgment, no part of which has been paid. These defendants pray that their lien be decreed prior and paramount to the lien of plaintiff's mortgage.

Subsequently to the filing of these answers the plaintiff filed an amendment to its petition alleging that the mortgage in question was taken by it to secure it for previous advances, and that at the time of its execution the defendant Elmore was owing to plaintiff the amount of said notes. Afterwards the defendant C. E. Holt was made a party defendant, on his motion, and filed his answer alleging the invalidity of the plaintiff's mortgage. This defendant also alleged that he was the owner by assignment of the following claims:

"1. A mechanic's lien of Farnham & Lovejoy, filed February 25, 1876, for lumber and materials furnished the defendants Elmores, from April 17 to October 16, 1875, for the erection of a grist-mill on the premises described in plaintiff's petition, amounting to $1,993.08.

"2. A mechanic's lien of William Branton, filed March 4,