lien is situated, and within ninety days after the things aforesaid shall have been furnished or the work or labor done or performed, a just and true account of the demand due or owing to him, after allowing all credits, and containing a correct description of the property to be charged with said lien, verified by affidavit." Section 6922.

Between May 2, 1921, and the 27th day of November 1921, the Midco Company was the owner in possession of oil and gas leases upon, and leasehold estates in, the Rowland farm and the Baker farm in Arkansas. On October 10, 1921, the tank company filed a notice of a mechanic's lien for $10,504.10 for work done, material and fixtures furnished, and erections and improvements made on the Midco Company's two leasehold estates at the request and on the orders of the Midco Company. The notice claimed a lien for $7,062.40 on the Rowland farm and $3,441.70 on the Baker farm. The court below entered a decree by which it allowed a lien on the Rowland farm for $3,441.70; but it refused to sustain the tank company's claim for a lien for items of labor and material furnished on the Rowland farm on May 10 and June 1, 1921, aggregating $3,620.70, and refused to sustain a lien for materials and labor worth $3,441.70 furnished and erected on the Baker farm on June 1, 1921, because these items were not furnished within 90 days preceding October 10, 1921, when the notice of lien was filed.

[1] Counsel for the tank company insist, and counsel for the Midco Company deny, that a mechanic's lien for these items was lawfully secured by the notice filed on October 10, 1921, under the provisions of section 6906, as that section has been construed by the Supreme Court of Arkansas. The construction of that section by that court is clearly stated in Kizer Lumber Co. v. Mosely, 56 Ark. 544, 20 S. W. 409, and that construction has been repeatedly affirmed in its later decisions. Midland Valley R. R. Co. v. Maron Belt & Nut Mfg. Co., 91 Ark. 108, 111, 120 S. W. 396; Marianna Hotel Co. v. Livermore Fdry. & Mch. Co., 107 Ark. 245, 253, 254, 154 S. W. 952; Tenney v. Sly, 54 Ark. 93, 95, 96, 14 S. W. 1091; Burel v. East Ark. Lbr. Co., 129 Ark. 58, 61, 62, 64, 65, 195 S. W. 378, 10 A. L. R. 1017.

In the Kizer Lumber Company Case the action was brought to enforce a mechanic's lien for numerous items of lumber furnished at different times for the construction of a building by the lienor to the amount of $184.10, only $21.26 of which was for lumber furnished within the 90 days before the filing of the notice of lien. The court de

clared the local law of Arkansas under section 6906 on the question under consideration here in these, words:

"If the materials were furnished under one contract, he should file the account within ninety days after the last was delivered; but, if the materials were furnished under separate and distinct contracts, it should be filed under each contract, within the time limited. Livermore v. Wright, 33 Mo. 31; 2 Jones on Liens, §§ 1431-1434, and cases cited. If, however, he began to furnish 'without any specific agreement as to the amount to be furnished,' or the time within which they were to be furnished, and there was a 'reasonable expectation that further material' would be required of him,' and he was 'afterwards called upon from time to time to furnish the same,' he should file it within ninety days after the last item was delivered. In such a case, if the materials were 'furnished at short intervals, and were appropriate to the condition and progress of the building,' a presumption would arise that it was understood from the beginning that the 'materialman was to furnish the same' for the construction of the building as the same should be required; and the account therefor should be considered as one continuous account and one demand; and the last item thereof would be 'the date from which the limitations of the time of filing' should be taken. Trustees v. Heise, 44 Md. 453; Jones v. Swan, 21 Iowa, 181, 184; 2 Jones on Liens, §§ 1435, 1436, and cases cited.

"When the defendant purchased of the plaintiffs the first lot of lumber, he made no contract to buy any other material, but said to them that he might need more. He did need it, and called upon them from time to time to furnish the same, which they did, and charged it to him on account. It was furnished at short intervals, and, it seems, was appropriate to the progress of his house, and he used it in building the same. The presumption is it was furnished under one contract; and the amounts due for the same should be treated as one demand. The consequence is, the time for filing the account for all the materials furnished commenced running from the date of the last item of the same, and plaintiffs have a lien for the whole of it."

[2] The federal courts uniformly follow the construction by the highest court of a state of its Constitution and statutes, where no question of a violation of the Constitution or laws of the United States or of general or commercial law is involved, and there is no such question in this case.

had with them to furnish tanks, or there would be more?" he answered, "Oh, no, no, sir; that we were to furnish all the tanks they used while they were operating there." As from time to time the Midco Company's orders for these various items were received, the tank company sent bills for the respective items stating the places and terms of payment therefor and the location of the erections or improvements. For example, it sent a bill for the items ordered May 10, 1921, consisting of two 1,000 barrel and one 500 barrel, bolted steel tanks with stacks and flanges on that day, and completed the erection of the tanks on the Rowland farm on May 16, 1921. Each tank and its appurtenances when completed, so far as its capacity to do its work was concerned, was separate from and operative independent of the other tanks and items claimed under the notice of lien.

[4-8] Counsel for the Midco Company in opposition to the conclusion to which this evidence has forced our minds argued and cited authorities, principally from the courts of other states and from the federal courts considering the statutes of other states than Arkansas upon these grounds:

First, that the evidence did not establish a single contract for all the items specified in the notice of lien which was binding upon both parties, but evidenced separate and independent contracts for the items ordered at different dates. But, while this objection might and doubtless would be fatal to a claim of mechanic's lien in an analogous case arising under the construction given to similar statutes in some of the other states (Ber let v. Lehigh Valley Silk Mills [C. C. A.] 287 F. 769; Sloss-Sheffield Steel & Iron Co. v. Payne, 186 Ala. 341, 64 So. 617; Baxter v. Cherryvale Oil Co., 111 Kan. 621, 208 P. 568; Fitzpatrick v. Ernst, 102 Minn. 195, 113 N. W. 4; Trustees of the German Lutheran Church v. Heise & Co., 44 Md. 453; Chase v. Garver Coal & Mining Co., 90 Iowa, 25, 57 N. W. 648), it is not tenable in this case because, as we have seen, the rule of property upon this subject has been finally established to the contrary by repeated decisions of the Supreme Court of Arkansas construing the mechanic's lien law of that state, and the decisions of the courts of other states and of the federal courts interpreting the statutes of other states may not prevail over that rule in the federal courts when enforcing the local law of that state. Their duty is to follow and enforce that rule in Arkansas, and thus avoid conflicting decisions over questions of local law and local rules of property.

Second, that the tank company did not give 10-day notice before filing the notice of lien to the owner or owners of the leasehold estates that it held a claim against the erections or improvements, the amount thereof, and from whom it was due, as required by section 6917. But that section reads: "Every person, except the original contractor, who may wish to avail himself of the benefit of the provisions of this act shall give ten days' notice before the filing of the lien," etc., and the tank company was the original contractor, and thus excepted from the requirements of that section.

Third, that section 6925 provides that "all liens created by virtue of this act shall be enforced in the circuit court of the county wherein the property on which the lien is attached is situated," and no action to enforce this lien has ever been commenced in that court. But in cases wherein, as in this case, a party by virtue of the amount involved and the residence and citizenship of the parties, or by virtue of other facts vesting jurisdiction in the federal court, is entitled to invoke its jurisdiction to enforce its lien, the power is vested in and the duty is imposed upon that court to enforce the civil rights and remedies of that party created by the statutes of the state and enforceable in the courts of that state. National Surety Co. v. State Bank, 120 F. 593, 56 C. C. A. 657, 61 L. R. A. 394; Darragh v. Wetter Mfg. Co., 78 F. 7, 14, 23 C. C. A. 609; Morrill v. American Reserve Bond Co. (C. C.) 151 F. 305, 316; In re Purvis (D. C.) 293 F. 102; Phillips on Mechanics' Liens (2d Ed.) § 313.

Fourth, that the tank company did not commence its suit to foreclose its lien within 15 months after the filing of the lien, as required by section 6926. But the notice of lien was filed on October 10, 1921. On May 20, 1922, far within the 15 months, the tank company, pursuant to the ancillary bill of the trustees in the mortgage and the action of the court making it a party to the foreclosure suit, filed its answer and crosscomplaint, asserted its mechanic's lien, and prayed for its enforcement. No other suit lien because that suit accomplished the purwas required by the statute to enforce this pose of the statute.

Fifth, that the tanks for oil and gas or gas traps such as were furnished in this case do not constitute "any material, fixtures, engine, boiler or machinery for any building, erection, improvement upon land," or the work of furnishing or erecting them, for which a lien may be claimed under the statutes of the state of Arkansas. But in our opinion this objection is far from tenable.

One of these 1,000 barrel tanks furnished and claimed under this lien was 22 feet in diameter, 16 feet in height and weighed about 4 tons. There is in our minds no

In re RUSKELL.

FARMERS' STATE BANK OF BELMONT, WIS., v. PRUSSING.

nances and fixtures placed upon land upon which oil was produced or was about to be produced was an erection and an improvement thereon.

Sixth, that the tanks, their appurtenances, the fixtures, and materials were sold in the ordinary course of business on the personal credit of the Midco Company without any single contract contemplating their location on specific realty. The evidence, however, is convincing that the tanks and other items were sold and ordered placed upon respective leasehold estates of the Midco Company on either the Rowland farm or the Baker farm. The bills for the items purchased stated on their faces the farm for which they were ordered, and the inference from this evidence that each item was purchased for a specific leasehold estate of the Midco Company is irresistible.

Let the part of the decree below which denied the tank company a mechanic's lien on the Rowland farm for $3,620.70 and allowed a lien for only $3,956.70 be reversed, and let the decree below be so modified as to allow the tank company a lien on that farm for $7,577.40 and interest at 6 per cent. per annum from September 22, 1921. Let that part of the decree which denied the tank company a mechanic's lien on the Baker farm for $3,441.70 and allowed a lien there on for only $85 be reversed, and let the decree be so modified as to allow it a lien on that farm for $3,526.70 and interest thereon at 6 per cent. from September 22, 1921. Let that part of the decree which directs the proceeds of the property ordered to be sold, and any moneys in the hands of the receiver as the result of the operation of the property at the date of the confirmation of the sale to be applied "(2) To the payment of the sum of $4,041.70, together with interest thereon at 6 per cent. from the 22d day of September, 1921, to defendant American Tank Company for and on account of the lien of said American Tank Company," be so modified that it shall order such proceeds and moneys to be applied "(2) To the payment of the sum of $11,104.10, together with interest thereon at 6 per cent. from the 22d day of September, 1921, to defendant American Tank Company for and on account of the lien of said American Tank Company," and let the tank company recover its costs in this case in this court.

November 20, 1924.)

No. 3398.

1. Bankruptcy 467-On appeal from determination, adversely to creditor, of sole question of fact presented by creditor's intervening petition, no further question for determination.

Where sole question of fact presented by intervening petition in bankruptcy trustee's proceeding to remove cloud on bankrupt's property was determined adversely to petitioner, there was no further question for consideration on appeal, because only such order could have been made, favorable to petitioner, as was required by allegations of intervening petition, and though other relief than that specifically prayed could be granted under general prayer, it could only be such as would be consistent with specific prayer.

Appeal from the District Court of the United States for the Western District of Wisconsin.

In the matter of C. F. Ruskell, bankrupt. Proceeding by Frank H. Prussing, as trustee in bankruptcy, to remove cloud from bankrupt's property, wherein the Farmers' State Bank of Belmont, Wis., intervened. Decree for trustee, and intervener appeals. Affirmed.

A. W. Kopp, of Platteville, Wis., for appellant.

Wm. Ryan, of Madison, Wis., for appellee.

Before ALSCHULER, EVANS, and PAGE, Circuit Judges.

PAGE, Circuit Judge. In June, 1923, appellee, as trustee of C. F. Ruskell, a voluntary bankrupt, filed his petition in the District Court, alleging possession of the real estate and personal property of bankrupt, and that in February, 1922, bankrupt, with his wife, executed and delivered a deed to the real estate in question to one John Ruskell for the purpose of placing the title in said Ruskell in trust, to sell and pay the creditors of bankrupt; that there was no change of possession, and bankrupt continued to occupy and carry on the business of farming said real estate as if there had been no sale; that said Ruskell made no claim to

the property by virtue of said deed; that the deed was recorded and constitutes a cloud upon the title to the real estate. The petition also recites the making of a chattel mortgage on the same date the deed was made, as a part of the same transaction, and for the same purposes; that John Ruskell makes no claim to the chattel property by reason of the mortgage; that the chattel property is in the possession of the trustee, and said mortgage constitutes a cloud upon the title. The prayer is that John Ruskell and Isabel, his wife, be required to show cause why the deed and mortgage should not be held void.

In July, after the entry of a rule upon John Ruskell and wife to show cause why the prayer should not be granted, appellant filed an intervening petition, alleging that it was a judgment creditor of John Ruskell, and reciting the conveyances from bankrupt to John Ruskell, substantially as set out in the trustee's petition. It was further averred that about the time of the delivery of the deed and chattel mortgage bankrupt was indebted to John Ruskell in a large sum, and, in addition, John Ruskell had become indorser for bankrupt to a large amount; that the deed and chattel mortgage were given for the purpose of securing the said John Ruskell on his said indebtedness and indemnifying him against loss by reason of his assumption of liability as surety. The petition further shows, in answer to the trustee's petition, that "John Ruskell appeared, without counsel, and did not in good faith resist the said order to show cause, and is fraudulently contriving to defeat his creditors"; that, as John Ruskell had no other property, the petitioner would suffer great and irreparable loss if John Ruskell's rights in the property in question were not preserved; and that, unless petitioner be permitted to intervene, the property of John Ruskell will be dissipated and creditors defrauded. The prayer of the intervening petition is: "That an order may be entered, declaring said deed hereinbefore referred to an equitable mortgage, and holding said equitable mortgage and chattel mortgage valid and subsisting in favor of John Ruskell." There is also a prayer for general relief.

[1] 1. The trustee's petition, directed only against John Ruskell and his wife, presented the issue, upon the facts alleged, as to whether the deed and chattel mortgage should be canceled and set aside as a cloud on the trustee's title. Neither John Ruskell nor his wife contested the petition, but, because of alleged bad faith on Ruskell's part

in failing to do so, and because it alleged it was a judgment creditor of John Ruskell, appellant asked and was granted permission to intervene on one issue only, viz.: "That said deed and chattel mortgage were given for the purpose of securing the said John Ruskell on his said indebtedness and indemnifying him against loss by reason of the said assumption of liability as surety as aforesaid."

Appellant here ignores the fact that it asked and was allowed to intervene in the District Court on the theory that, as a judgment creditor of John Ruskell, it should be permitted to make a defense to the trustee's petition, which John Ruskell was fraudulently failing and refusing to make, namely, that whatever interest was conveyed by the deed and chattel mortgage to John Ruskell was an interest wholly for his personal benefit, and not as trustee for all of bankrupt's creditors. It admits, however, that the issue upon the question of fact was resolved against it by the District Court. After a careful review of the record, we are of opinion that there is no justification for disturbing the finding of the referee and the District Court that the deed and chattel mortgage were made to John Ruskell, as trustee for all of bankrupt's creditors, and were not made for the sole personal benefit of John Ruskell. The intervening petition presented only a question of fact, and, with that question determined against appellant, there is no further question here for con- · sideration, because, upon the intervening petition, only such an order could have been made, favorable to appellant, as was justified by the allegations of the intervening petition, and while other relief than that specifically prayed may be granted under a general prayer, it can only be such relief as is consistent with the specific prayer. This principle is so old as to hardly need citation of authorities. English v. Foxall, 2 Pet. 611, 7 L. Ed. 531; Hobson v. McArthur, 16 Pet. 195, 10 L. Ed. 930; Boone v. Chiles, 10 Pet. 228, 9 L. Ed. 388.

[2] 2. But appellant claims that "issues of law were based on the finding of the court that the transaction was an attempted assignment for the benefit of all creditors and void for various reasons assigned." Whether the transaction was an attempted assignment for the benefit of creditors, or whether it was an equitable mortgage for the sole personal benefit of John Ruskel!. is the same question of fact, which we have found, and which appellant admits, was decided adversely to it; so that that question cannot be open to further discussion.