Page:Federal Reporter, 1st Series, Volume 7.djvu/445

 TOMME? V. SPARTANBTTBa & ASHEYILLE B. CO. 433 �classes: First, those who have filed in the proper court "mechanics' and laborers' liens;" second, ihoae -who have not filed sucb liens in the state courts, but claim a lien by stat- ute. Of the first class are Ery & Deal, John Garrison, Eice & Coleman, and T. G. Williamson, whose claims are f ully set out in the master's report. These claims, we think, ought not to be allowed, except as postponed to the mortgage debt. �It is not necessary, in our opinion, to argue whether or not these lien claims are filed under the provision of the state law. In each case the work was done and the lien filed sub- sequent to the execution of the mortgage; but we think the statute upon which the claims are based does not apply to railroads. Battle's Eevisal, c. 65.* �No case bas been cited where any court in North Carolina bas held that such a lien was within the purpose or meaning of that statute, although the statute was passed in 1869-70. The act does not mention railroads as the subject of sucb liens, and the intimation of the supreme court of North Caro- lina in Whitaker v. Smith, 81 N. G. 340, is the other way. It was there held that the statute gave a lien to "mechanics and laborers" exclusively, and that an "overseer" was not a laborer, and reference made to 8 Pa. St. 168, where it is held that an engineer is not a "laborer." The first class of claimants filed their liens as contractors. They are not, in our opinion, mechanics and laborers within the mean- ing of the North Carolina law as held by its supreme court. The second class of creditors referred'to in the master's report do not claim a lien under chapter 65, Battle's Ee- visal, as the other lien claimants have done, but they do claim that by virtue of chapter 26, § 48, Bat. Eev., all the debts due them, and all contracts with the corporation at the date of the execution of the mortgage, were liens prior to �*8ection 1 of the statute provides that " every building built, rebuilt, repaired, or improved, together with the necessary lots on which said building may be situated, and every lot, farm, or vessel, or any kind of jyroperty not Twrein enumerated, shall be subject to a lien for the payment of all debts contracted for work done on the same, or materials fur- nished."— [Rep. �v.7,no.4— 28 ��� �