Jackson v. Dubois, 4 Johns. 216; Hampton v. Levy, 1 McCord's Ch. 107.

In Maine a levy takes precedence of a mortgage recorded the day after the time named when the officer "seized and took" the land in execution. French v. Allen, 50 Me. 437. In Kansas a mortgagee holding under a mortgage which misdescribes the premises intended to be conveyed, holds a prior lien to one holding under an execution, issuing under a judgment recovered subsequent to the execution of the mortgage. Swarts v. Stees, 2 Kans. 236.

Upon foreclosure of a mortgage, the amount paid at a tax sale by one claiming under the tax sale and interest will form a lien prior to the mortgage. The land will be decreed to be sold free from the lien for taxes, and the purchaser at the tax sale will be paid first. Campbell v. Dewick, 20 N. J. Eq. (5 C. E. Gr.) 186. Under the Pennsylvania act, liens, the existence of which prior to a mortgage will cause it to be divested by a sheriff's sale, must be such as are themselves divested by the sale and thrown upon the fund. Helfrich v. Weaver, 61 Penn. St. 385.

The service of an attachment upon mortgaged premises, after the execution and delivery of a mortgage, but before it is recorded, creates no lien upon the prior estate of the mortgagee, if the mortgage is recorded before judgment under the attachment. Campion v. Kille, 1 McCarter (N. J.), 229; S. C., 2 id. 476. But a creditor, by attaching property in the possession of his debtor, acquires a specific lien on his interest, and is entitled, like a judgment creditor, to impeach the colorable title of a fraudulent mortgagee. Frost v. Mott, 34 N. Y. (7 Tiff.) 253. A mortgage which was a subsisting incumbrance upon premises, on which a mechanic's lien is claimed, when the premises were purchased by the defendant, is a prior incumbrance to the liens of the mechanics and material-men, both upon the land and upon the buildings which were then upon it. Morris, etc., Bank v. Rockaway, etc., Co., 1 McCarter (N. J.), 189; Hazard Powder Co. v. Loomis, 2 Disney (Ohio), 544.

Where an owner mortgaged land on which a widow's interest was secured, and a judgment was afterward obtained against him on which the land was sold, neither the arrears of interest on the widow's charge, nor the mortgage, was divested by the sale. Wertz's Appeal, 65 Penn. St. 306.

Where a mother conveys premises to her son in fee, taking back a life lease and remaining in possession, but before her lease is recorded her son gives a mortgage of the premises to one who has made reason

able inquiries for liens without obtaining knowledge of the lease, the mortgage is a prior lien. Staples v. Fenton, 5 Hun, 172.

§ 6. Tacking mortgages, etc. In England there is a doctrine in relation to mortgages, by which if there were, for instance, three successive mortgages without notice, upon the same estate to three different persons, and the third acquires the first mortgage by assignment, he may hold the estate against the second, until he shall have paid both the first and the third. This is called "tacking" of mortgages, and rests upon the idea that the equities of the parties are all equal, and the first being in possession shall not be obliged to give up his legal right of possession till his whole charge upon the estate is satisfied. Wms. Real Prop. 361; 3 Washb. Real Prop. 540. But in this country, this doctrine is wholly superseded by the principle of registration, whereby the record of a prior mortgage is constructive notice to all parties of its existence. Grant v. U. S. Bank, 1 Cai. (N. Y.) Cas. 112; Wing v. McDowell, Walk. (Mich.) 175; Chandler v. Dyer, 37 Vt. 345. If it is not recorded and the second has no notice of it in fact, his own takes precedence of the prior one. Humphreys v. Newman, 51 Me. 40; McKinstry v. Mervin, 3 Johns. Ch. 466; Averill v. Guthrie, 8 Dana, 82; Green v. Tanner, 8 Metc. 411.

A prior mortgagee cannot tack his debts against the mortgagor, not included in the mortgage, to his prior mortgage, to the injury of a subsequent mortgagee. Siter v. McClanachan, 2 Gratt. (Va.) 280; Hughes v. Worley, 1 Bibb (Ky.), 200; Chase v. McDonald, 7 Harr. & J. (Md.) 160.

When a creditor, whose debt is secured by the assignment of a mortgage, purchases a judgment which constitutes a prior lien on the mortgaged premises, at the request of his debtor, and with the express understanding that it shall be tacked to the mortgage, and paid out of the fund, he is entitled, in equity, to have it tacked to his mortgage, and paid out of the fund. Cullum v. Branch Bank at Mobile, 23 Ala. 798.

Though a creditor cannot tack a debt not secured by mortgage to an existing mortgage debt, so as to make the former a charge upon the land, nor a subsequent mortgage to a prior one, against. an intervening incumbrance, yet a mortgagee may take another mortgage which will be valid against an intervening incumbrance implied by equity of which the mortgagee had neither actual nor constructive notice. Orvis v. Newell, 17 Conn. 97.

The purchase-money of land unpaid is a lien on the land where no conveyance has been made of it, unless there is evidence that the land was not looked to, or such lien has been abandoned. If, thereVOL. IV.-75

fore, a conveyance is to be made when the purchase-money is paid, the vendor has a lien on the land for the purchase-money; and if the vendee mortgages the premises to a third person, and such person pay the purchase-money, he may tack the money paid to the sum due on the mortgage. Henderson v. Stewart, 4 Hawks (N. C.), 256.

As to foreclosure, see ante, Vol. 3, 407.

CHAPTER C.

MUNICIPAL CORPORATIONS.

TITLE I.

OF MUNICIPAL CORPORATIONS GENERALLY.

ARTICLE I.

OF THEIR NATURE IN GENERAL.

Section 1. Definition and nature. According to the doctrine of the common law, a corporation aggregate for municipal purposes is nothing more nor less than "an investing the people of a place with the local government thereof." Cuddon v. Easturick, 1 Salk. 192; People v. Morris, 13 Wend. 325, 334; People v. Hurlbut, 24 Mich. 44, 85; Brickerhoff v. Board of Education, 37 How. (N. Y.) 499; S. C., 2 Daly, 443. Or, it is an agency to regulate and administer the internal concerns of a locality in matters peculiar to the place incorporated, and not common to the State or people at large; and both the persons and the place inhabited by them are indispensable to the constitution of such a corporation. 1 Dill. Mun. Corp., § 9 b; New Orleans, etc., R. R. Co. v. City of New Orleans, 26 La. Ann. 478. The corporation is the artificial body created by the law; and even the council, or other legislative or governing body, constitutes, neither the corporation, nor in themselves a corporation. Reg. v. York, 2 Q. B. 847, 850; Reg. v. Paramore, 10 Ad. & El. 286; Harrison v. Williams, 3 B. & C. 162. Nor are municipal corporations established for the exclusive advantage of the corporators, but they are created and exist for the benefit of the public at large. Police Jury v. Shreveport, 5 La. Ann. 661, 664; Herbert v. Benson, 2 id. 770; Jameson v. People, 16 Ill. 257. See, also, Lowber v. Mayor, etc., of New York, 5 Abb. Pr. (N. Y.) 325; Clarke v. City of Rochester, 14 How. (N. Y.) 193; S. C., 24 Barb. 446; 5 Abb. Pr. 107.

All corporations intended as agencies in the administration of civil government are public, as distinguished from private corporations;

but all public corporations are not municipal corporations. A distinction is made between municipal corporations proper, as incorporated villages, towns and cities, and other public corporations, such as counties and quasi corporations. See 1 Dill. on Mun. Corp., § 10. The former are called into existence, either at the direct solicitation or by the free consent of the persons composing them, for the promotion of their own local and private advantage and convenience; while the latter are, at most, but local organizations, which, for the purposes of civil administration, are invested with a few functions characteristic of a corporate existence. Hamilton County v. Mighels, 7 Ohio St. 109, 115. See, also, Ward v. County of Hartford, 12 Conn. 406; Harris v. School District, 28 N. H. 58; Parsons v. Goshen, 11 Pick. 396; Schriffer v. Saum, 81 Penn. St. 385.

So, municipal corporations proper, as ordinarily constituted, are generally regarded as being possessed of a double character—the one public, the other private. Thus, in speaking of powers granted to a municipal corporation, Justice NELSON remarks, that "regard should be had, not so much to the nature and character of the various powers conferred, as to the object and purpose of the legislature in conferring them. If granted for public purposes exclusively, they belong to the corporate body in its public, political, or municipal character. But, if the grant was for purposes of private advantage, or emolument, though the public may derive a common benefit therefrom, the corporation, quo ad hoc, is to be regarded as a private company. It stands on the same footing, as would any individual, or body of persons, upon whom like special franchises had been conferred." Bailey v. Mayor, etc., of New York, 3 Hill, 531. See, also, Western Saving Fund Society v. City of Philadelphia, 31 Penn. St. 175, 185; New Orleans, etc., R. R. Co. v. City of New Orleans, 26 La. Ann. 478; Board of Park Commissioners v. Common Council of Detroit, 28 Mich. 228; S. C., 15 Am. Rep. 202; De Voss v. Richmond, 18 Gratt. (Va.) 338; Weightman v. Washington, 1 Black (U. S.), 39; Western College v. Cleveland, 12 Ohio St. 375. And the distinction is well established between the responsibilities of towns and cities for acts done in their public capacity, in the discharge of duties imposed on them by the legislature for the public benefit, and for acts done in what may be called their private character, in the management of property and rights voluntarily held by them for their own immediate profit or advantage, as a corporation, although inuring, of course, ultimately to the benefit of the public. Fisher v. Boston, 104 Mass. 87; S. C., 6 Am. Rep. 196; Maxmilian v. Mayor of New York, 62 N. Y. (17 Sick.) 160; 20 Am. Rep. 468; Detroit v. Corey, 9 Mich. 165; Mead v.