INDEX. 577

MECHANICS' LIEN.

1. The law relating to the lien of mechanics and others upon buildings,
only prefers such lien to every other lien or incumbrance, which at-
tached upon the building subsequent to the commencement of the same.
Jones vs. Hdmock, 187.

2. If there be liens on the property prior to the commencement of the build-
ing upon which the work is done, or for which the materials are found,
the lien for work and materials must be postponed to such prior in-
cumbrance. Ib.188.

3. The act of 1845, ch. 287, sec. 4, gives no right.to a party to enforce this
lien upon the proceeds of sales of machinery. Ib.

4. Though a party having a lien on a building, for work and materials, may
come into a court of law or equity for his share of the proceeds of a
sale made under its authority, no such right is given when such pro-
ceeds arise from the sale of machinery. It.
MERGER. s»

1. If the inquisition of the jury when returned to, and affirmedby, the court,
under the act of 1824, ch. 79, sec. 15, constitutes a debt at all, it is a
debt of record, and of an equal grade with a judgment, and, therefore,
not merged by it. Harness vs. Chesapeake and, Ohio Canal Co., 248.
MISJOINDER OF PLAINTIFFS.

See PRACTICE IN CHANCERY, 13.

MISTAKE.

1. Before a party can be relieved in the case of a written contract upon
the ground of mistake, the evidence of mistake must be clear and sat-
isfactory, and if any reasonable doubt can be entertained on the sub-
ject, relief will be refused. Goldsbmough vs. Singgold, 239.

2. The mistake sought to be rectified, was in regard to the number of acres
sold under the decree. The only evidence was found in a sarvey or-
dered by the court, upon the exports application of the petitioner,
which differed from the survey according to which the land was sold.
It was HELD—That this evidence was not sufficient lu uyerthruw the
contract on the ground of mistake. Ib.

See JURISDICTION, 14.
MORTGAGE.

1. A bill of sale though absolute in its terms, is, in equity, considered as a
mortgage whenever the object is to secure the payment of a debt, and
not to transfer the title to the party to whom the conveyance is made.
dark vs. Levering, 178.

2. A mortgage debt must be paid out of the personal estate of the mort-
gagor, and if that is not adequate, then the balance should be paid out
of that portion of the real estate contained in the mortgage. Goodhum
vs. Stmew, 420.

3. No matter how absolute a conveyance may be on its face, if the inten-
tion is to take a security for a subsisting debt, or for money lent, the
transaction will be regarded as a mortgage and will be treated as such.
Sank rf Westminster vs. White, 536.
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