As we see the evidence in this case, there is a failure of proof to show any consideration to support the agreement to forego the marital right each had in the other's property. But if it could be concluded that the contract was of such a nature that the release of the inchoate interest of the one should be considered as a sufficient consideration for the release of the inchoate right of the other (and there is no evidence of such fact), then the contract would be executory, and of no binding force in case either should choose to disregard it, and claim the provision made by law.

The personal property of each remained in the possession and under the absolute control of its owner, and was subject to the disposition of such owner, without the consent of the other party to the agreement. There was nothing in the contract proved to prohibit such disposition, and, this being true, it follows that either was 646 at liberty to revoke such agreement at any time. Appellant disaffirmed the testamentary disposition made by his wife of her property, and is demanding his rights under the law. This, under the facts here appearing, he is at liberty to do. In view of this conclusion, we deem it unnecessary to notice any other questions. here presented.

Judgment reversed, with instructions to grant a new trial, and the right to the parties to amend the pleadings if either of them so desires.

Contracts Between Husband and Wife whereby they agree to live apart from each other and to adjust their property rights, are discussed in the note to Baum v. Baum, 83 Am. St. Rep. 859. If a husband and wife execute an agreement of separation by which each releases all claim to the property of the other and all right of inheri tance thereto, and the agreement is lived up to by both during her lifetime, he will not be heard to say, after her death, that the contract is not fair: Estate of Edelman, 148 Cal. 233, 113 Am. St. Rep. 231. The Assignment or Release of Expectant Estates will be found discussed at length in the note to McCall v. Hampton, 56 Am. St. Rep.

339.

Marriage Settlements are discussed in the note to Merritt v. Scott, 50 Am. Dec. 371, and in the recent case of South Carolina Loan etc. Co. v. Lawton, 69 S. C. 345, 104 Am. St. Rep. 802. The antenuptial agreement of a wife to waive her homestead rights is unenforceable: Zachmon v. Zachmon, 201 Ill. 380, 94 Am. St. Rep. 180.

Am. St. Rep., Vol. 117-23

CASES

IN THE

SUPREME COURT

OF

INDIANA.

MCDANIEL v. OSBORN.

[166 Ind. 1, 75 N. E. 647.]

MECHANICS' LIENS-Mortgages-Priority.-A statute making debts due for manual or mechanical labor a preferred claim against the property of the debtor in the hands of an assignee or receiver does not give such debts a preference over a prior mortgage on such property. (pp. 357, 358.)

M. W. Hopkins and R. T. McFall, for the appellants.

R. T. Hollowell and Harding, Hovey & Wiltsie, for the appellees.

1 MONTGOMERY, J. Appellee Cyrus Osborn brought this suit upon two notes, one for eight hundred. and fifty dollars and one for twelve hundred dollars, 2 dated January 13, 1898, due in four months and in two years, respectively, after date, and to foreclose two real estate mortgages given to secure the same. Appellants, upon their own application, were made parties to the suit, and filed their intervening petition, setting up their respective claims against the mortgagor, and averring that they were liens upon the mortgaged property superior to the lien of appellee Osborn's said mortgages. Said appellee's demurrer to this petition for want of facts was sustained, and, appellants declining to plead further. judgment was rendered against them for costs. Such further proceedings were had in the case as resulted in a judg ment for appellee Osborn upon said notes, and a decree foreclosing said mortgages and ordering the sale of the mortgaged premises.

It is alleged on appeal that the court erred in sustaining the demurrer of appellee Osborn to the intervening petition of appellants.

Appellants averred in their petition that James O. Winsted, the mortgagor, became the owner of the real estate in question on December 19, 1892, and continued as such owner until July 15, 1901, at which time he made a voluntary assignment of all his property to Henry S. Cox, as trustee for the benefit of his creditors, under the laws of this state; that at the time of the execution of said mortgages said Winsted was, and prior thereto had been, and thereafter until the date of assignment continued, in the business of general farm implement merchandizing; that on July 15, 1901, said Henry S. Cox accepted the deed of assignment, caused the same to be duly recorded, qualified as such assignee, and entered upon the duties of his trust; that on October 5, 1901, said Winsted was duly adjudged a bankrupt by the United States district court for the district of Indiana, and on November 25, 1901, James M. Ogden was appointed and qualified as trustee in bankruptcy of all the property of said bankrupt; that in January, 1902, appellee Osborn commenced this suit, and caused William 3 C. Osborn to be appointed by the court as receiver of the mortgaged property, "to take charge of the property, rent the same, and collect the rents and profits and apply them to the payment of the plaintiff's debt, taxes, and the making of necessary repairs of the buildings on said property," and that said receiver qualified and took charge of said property; that the money realized from sales of property coming into the hands of James M. Ogden as trustee in bankruptcy was not more than sufficient to pay the actual costs of the administration of said bankruptcy matter, and that there were no funds and would be none for distribution to any creditor of said Winsted; that within six years next preceding July 15, 1901, appellants each performed "manual and mechanical labor, work and services for said James O. Winsted, at his special instance and request, for which he is indebted" to appellant McDaniel in the sum of one hundred and seven dollars and eighty-five cents, to appellant Sadie Winsted in the sum of one hundred and twelve dollars and seventy-five cents, and to appellant Elmer B. Winsted in the sum of eight hundred dollars and thirty-nine cents, all of which was due; that said James O. Winsted was insolvent, and all his property had passed into the hands of Henry S. Cox, as assignee as aforesaid, since which time he had not had any control of the same; and that the claim and right of appellee in and to said property was inferior to the liens and

claims of appellants. The prayer was that appellants' claims be decreed to be liens upon said real estate, and ordered paid first and in full out of the proceeds arising from the sale of said mortgaged premises. It was also shown by the record. that by an order of the federal court the mortgaged property was abandoned by the trustee in bankruptcy, on the ground that there were no equities in the property above the mortgages.

The theory of appellants' petition evidently is that their claims for labor, under the statute, became liens upon the property of their debtor Winsted at the time the title to such property passed to his assignee under the deed of assignment for the benefit of creditors, superior to the liens ✦ and claims of all other persons; and that the lien, having once attached, was not devested by the subsequent bankruptcy proceeding in the federal court. If the premises are sound, the conclusion must of necessity follow.

The statute upon which the claims of appellants are based is section 7058 of Burns' Revised Statutes of 1901 (Acts 1885, p. 36, sec. 3), and reads as follows: "All debts due any person for manual or mechanical labor shall be a preferred claim in all cases against any individual, copartnership, corporation or joint stock company where the property thereof shall pass into the hands of an assignee or receiver, and such assignee or receiver in the distribution and payment of the debts shall be required to first pay in full all debts due for manual or mechanical labor before paying any other, except the legitimate costs and expenses." The act is entitled: "An act in regard to the payment of employés of companies, corporations, individuals and associations doing business or employing labor in this state." This statute has not been construed upon the point in question by this or the appellate court, but section 7051 of Burns' Revised Statutes of 1901 (Acts 1885, p. 95), which is similar in principle, has been considered in a number of cases.

Appellants' counsel, in support of their contention, have cited cases in which other statutes upon the subject of liens and preferences have been construed and applied, to which we will briefly refer. Warren v. Sohn, 112 Ind. 213, 13 N. E. 863, involved section 7448 of Burns' Revised Statutes of 1901 (Rev. Stats. 1881, sec. 5471), by the terms of which a lien is expressly given to miners and other employés for their labor, prior and paramount to all other liens,

neces

except the lien of the state for taxes, and the decision is clearly right. Bass v. Doerman, 112 Ind. 390, 14 N. E. 377, involved section 7051, supra, and was correctly decided upon the facts stated. Watts v. Sweeney, 127 Ind. 116, 22 Am. St. Rep. 615, 26 N. E. 680, presented the question of priority of the lien of a mortgagee of a locomotive engine and that of a mechanic under section 7268 of Burns' Revised Statutes of 1901 (Rev. Stats. 1881, sec. 5304), for 5 sary repairs made upon the order of the mortgagor while in possession of the property, and was rightly decided. The case of Farmers' Loan etc. Co. v. Canada etc. R. Co., 127 Ind. 250, 26 N. E. 784, 11 L. R. A. 740, correctly declared the priority of the lien of laborers for labor performed in the construction of a railroad, where the lien was acquired upon notice duly given and recorded as provided by sections 7265, 7266 of Burns' Revised Statutes of 1901 (Acts 1889, p. 257, sec. 6; Acts 1883, p. 140, sec. 13). In Shull v. Fontanet etc. Min. Assn., 128 Ind. 331, 26 N. E. 790, it was held that the claim of a laborer rendering services for an assignee while in charge of and operating a coal mine was preferred, and should have been paid as a part of the costs and expenses of the assignee. The case of Aurora Nat. Bank v. Black, 129 Ind. 595, 29 N. E. 396, correctly declared the priority of the liens of laborers acquired upon notice given and recorded in accordance with the provisions of sections 7248, 7249 of Burns' Kevised Statutes of 1901 (Rev. Stats. 1881, secs. 5286, 5287), by the terms of which such laborers might obtain "a first and prior lien upon the corporate property." McElwaine v. Hosey, 135 Ind. 481, 35 N. E. 272, correctly construed section 1 of the mechanic's lien law: Acts 1889, p. 257; Burns' Rev. Stats. 1894, sec. 7255. The case of Jenckes v. Jenckes, 145 Ind. 624, 44 N. E. 632, also involved the construction of the mechanic's lien law (Burns' Rev. Stats. 1894, secs. 7255, 7257; Acts 1889, p. 257, secs. 1, 3), but it was expressly overruled in the case of Sulzer-Vogt Machine Co. v. Rushville Water Co., 160 Ind. 202, 65 N. E. 583. The cases of Small v. Hammes, 156 Ind. 556, 60 N. E. 342, and Bell v. Hiner, 16 Ind. App. 184, 44 N. E. 576, construed section 7051, supra, and, so far as they may be deemed authority for the construction of the statute under immediate consideration, are disapproved.

There is no intent manifest in the title, or from any language employed in the body of the statute under considera