Page:Federal Reporter, 1st Series, Volume 2.djvu/139

 182 PBDBEAIi EEPOBTBB. �mensuration, with the mortgage before him, going, at the time it was executed, to the Grindstone creek, and examining the logs in the north fork, could ascertain accurately the specifie logs mortgaged, which is ail that is required to make the mort- gage sufSciently definite and certain. �There is some confiict in the evidence about the surround- ing facta and circumstances. It is claimed the agent of the mortgagee agreed to permit the mortgagors to drive the entire lot of logs totheir mill, and manufacture and sell them. The evidence, however, does not satisfy my mind that such was the understanding. �If I am right m my construction of the mortgage, then, manifestly, so far as the executions are concerned, the sheriiï cannot hold the property by virtue of any rights of the judg- ment creditors as against the plaintiiï. The absolute right of possession of the mortgaged property belonged to the plain- tiff on default by the mortgagors, which was prior to the seizure, by the sheriff, upon the executions. Authorities are numerous. See Edson v. Newell, 14 Minn. 228, aud citations. �Can the sheriff avail himself of the rights which the statute gives certain laborers to secure liens and preferences for serv- ices performed ? There is some doubt about the construction of the statute of Minnesota, and the nature of the prooeedings nec. essary to establish and perfect the lien given by it. It is not necessary, in determining this case, to consider the rights of claimants under this statute. If the claim is an equitable one, then, coneeding that the lien claimants, by serving notice upon the sheriff, did ail that is necessary to preserve their liens under the statute, it cannot avail the sheriff to defeat the plaintiff's right to the property mortgaged. The money in the hands of the sheriff far exceeds the amount of plain- tiff's claim, and the overplus is more than enougli to secure payment for the services of the workmen, who urge prior liens under the statute ; and, if it is admitted that these workmen have a first lien on ail the logs eut, or lumber manufactured, includingthe logs mortgaged to the plaintiff, the lien not being upon any specifie portion, the rule prevails that where there are two funds to which ;he other lien claimants can resort, ����