"After a person has been adjudged a bankrupt, the judge may cause the trustee to proceed with the administration of the estate, or refer it (1) generally to the referee, or specially, with only limited authority to act in the premises, or to consider and report upon specified issues.' In this case, after Matthews was adjudicated a bankrupt, the whole case was referred generally to the referee for this referee district, in accordance with form No. 14 (32 C. C. A. lix., 89 Fed. XXXV.) prescribed by the supreme court of the United States. By rule 12 of the supreme court (18 Sup. Ct. vi.) it is provided that: "The order referring the case to a referee shall name a day upon which the bankrupt shall attend before the referee; and from that day the bankrupt shall be subject to the orders of the court in all matters relating to his bankruptcy, and may receive from the referee protection against arrest, to continue until the final adjudication on his application for a discharge, unless suspended or vacated by order of the court. A copy of the order shall forthwith be sent by mail to the referee, or delivered to him personally by the clerk or other officer of the court. And thereafter all proceedings, except such as are required by the act, or by these general orders to be had before the judge, shall be had before the referee." Such was the status of the case when the trustee in bankruptcy filed the petition to enjoin the sale under the mortgage, to have the sale made free from incumbrances, and to settle the priority of liens. In the purpose of this petition all parties acquiesced, and in the intervention of the Chaunceys and Savage, trustees, nothing is said as to who was in possession of the property. They simply assert their mortgage, and insist upon its priority over the liens of the other interveners, and pray they be adjudged to have a prior lien in the property; and, as stated, this was done in pursuance of an arrangement in which all parties to this proceeding having liens agreed that they would, in response to the trustee's petition, file, before the referee in bankruptcy, their interventions setting up their respective liens, and that no injunction issue, and no sale be had, until the rights of the respective parties had been determined by said intervention. It is clear, therefore, that, so far as all the interveners could do so, they have consented to the jurisdiction of the referee, and submitted themselves thereto. Clearly, if the proceedings had been begun by the trustee in the bankruptcy court, under section 23b, Bankr. Law, to recover the property from the mortgagees, instead of this proceeding to sell and settle priorities before the referee, the consent required by that section would be conclusively established, and all the interveners estopped to raise any question of jurisdiction. Hicks v. Knost, 178 U. S. 541, 20 Sup. Ct. 1006, 44 L. Ed. 1183; Stickney v. Wilt, 23 Wall. 150, 23 L. Ed. 50; In re Connolly (D. C.) 100 Fed. 620. The trustee, however, treated the property as all under the control of the bankrupt court, and the Chaunceys and Savage acquiesced. From any point of view, the trustee did acquire an equity of redemption in the property, and had a right to apply for its sale, without reference to who had possession; and it was agreed and acquiesced in by all parties that, in view of the numerous liens, the priorities of which were in dispute, it should be sold free from all liens by the trustee, and the money brought into court, to be distributed as their equities might be adjudged. The referee made the order that the trustee proceed to sell the property free from all incumbrances, and bring the fund into court; and all parties have acquiesced in that part of the order relating to the sale, no review having been sought as to that. That order is the law of this case, unless the referee was without power to make it. Two questions remain. Had the referee the power to order the sale, free from liens, all parties submitting to the jurisdiction for that purpose? Second. Had he the power to settle the priorities between the lienholders? Both questions will be considered together. It may be remarked in the outset that, so far as the court has been able to find, there is nothing in the bankrupt law, and nothing in the rules promulgated by the supreme court, which contravene the last paragraph of section 1 of rule 12 (18 Sup. Ct. vi.), wherein it is stated: "And thereafter [meaning after the case has been referred] all the proceedings, except such as are required by the act, or by these general orders, to be had before the judge, shall be had before the referee." So that it would seem that, independent of any other authority, the power would exist in the referee, not only to make the sale, free from liens, where the parties had submitted themselves to his jurisdiction, but also to declare the priorities. But we are not without authority upon this question. The supreme court, in White v. Schloerb, 178 U. S. 542, 20 Sup. Ct. 1007, 44 L. Ed. 1183, says: "Referees in bankruptcy are appointed by the courts of bankruptcy, and take the same oaths of office as judges of the United States courts. Each case in bankruptcy is referred by a court of bankruptcy to a referee, and he exercises much of the judicial authority of that court." It is the universal practice in this jurisdiction, and everywhere, so far as the court is advised, for the referees to order sales of prop erty; and forms Nos. 42 to 46, inclusive (32 C. C. A. lxxiii.-lxxv., 89 Fed. xlix.-li.), promulgated by the supreme court, all contemplate that these sales shall be made under orders of the referee. By rule 18 (18 Sup. Ct. vi.), when private sales are ordered and made, the report must be made to the referee. In Coll. Bankr. (3d Ed.) p. 475,. the author says that a majority of cases under the present act hold that the court, including the referee, has power to order the sale of land free of incumbrances, and that the proceeds are to stand as a substitute for the liens themselves for the benefit of those holding liens to the extent of their interest therein, and the surplus goes to the general creditors. By section 38a (4) it is provided: "Referees respectively are hereby invested, subject, always, to a review by the judge, within the limits of their districts as established from time to time, with jurisdiction to * (4) perform such part of the duties, except as to questions arising out of the applications of bankrupts for compositions or discharges, as are by this act conferred on courts of bankruptcy, and as shall be prescribed by rules or orders of the courts of bankruptcy for their respective districts, except as herein otherwise provided." rights, and having obtained a favorable decision by the referee, cannot now, for the first time, be heard to complain of the lack of jurisdiction. And especially is this true since the question itself. ⚫ is not raised by the pleadings, and only incidentally by the testimony of their agent. The next question in this case is whether or not the mechanics', liens herein referred to have priority over the mortgage lien of the Chaunceys. The Chaunceys' mortgage was placed upon record before this building was begun. The mechanic's lien law now in force in this state was approved April 20, 1895, and is found in the Acts of 1895, at page 217. I have had no little trouble in determining the construction of this act. This act repealed the mechanic's lien law found in Sandels & Hill's Digest, beginning with section 4731. The legislature had some object in repealing this law. It is well to inquire what it was. That part of the act which tends to throw light upon the act of April 20, 1895, is found in section 4737, Sand. & H. Dig. It reads as follows: "Sec. 4737. The liens for work or labor done, or things furnished, shall be paid pro rata, except that the lien of a sub-contractor shall be preferred to that of a contractor. Liens under this act shall be preferred to all other liens and incumbrances attached to or upon such building, erection or other improvement, and to the land on which the same is situated, made subse quent to the commencement of such building, erection or other improve ment." This section of the statute, giving liens to mechanics, laborers, and persons furnishing material for the construction of a building priority over liens and incumbrances made subsequent to the commencement of such building, erection, or other improvement, was construed by the supreme court of Arkansas in Apperson v. Farrell, 56 Ark. 640, 20 S. W. 514, and upheld. That court, among other cases which they cited as supporting the decision of Apperson v. Farrell, referred to Davis v. Bilsand, 18 Wall. 659, 21 L. Ed. 969. In that case the supreme court of the United States, in construing a similar statute existing in Montana, said: "The lien secured to the mechanics and material men have precedence over all other incumbrances put upon the property after the commencement of the building. And this is just. Why should a purchaser or lender have the benefit of the labor and materials which go into the property and give it its existence and value? At all events, the law is clear, and the decree was right." It will therefore be seen that mechanics, laborers, and material men had a prior lien upon the improvements, as well as the land. on which the same were situated, over a mortgagee whose mortgage was made subsequent to the commencement of the building, erection, or improvement. And this same provision is found in section 5 of the act approved April 20, 1895, found in the Acts of 1895, at page 221. It reads as follows: "Sec. 5. The lien for work and materials as aforesaid shall be preferred to all other incumbrances which may be attached to or upon such buildings, bridges, boats, vessels or other improvements, or the ground, or either of them, subsequent to the commencement of such buildings or improvement." And by section 1a (8):n inter shall in "Courts of bankruptcy and of the territories, the supreme court of the District of Columbia, and the United States court in the Indian Territory and of Alaska." In re Worland (D. C.) 92 Fed. 893, is a case which seems absolutly in point. In that case there was conflicting liens, and a petition was filed by the trustee before the referee for an order directing the sale of the realty and certain machinery situate thereon, and asking that the latter should be sold separately, the proceeds to be applied to the payment of the debts secured by the chattel mortgage. One mortgage was upon the property, including the building, ground, and machinery; another was a mortgage on a stock of lumber and other material, and on tools, machinery, engine, boiler, gearing, shafting, and belting upon the same premises; and the third was a judgment lien. The matter was heard and determined by the referee, and duly certified to the district court for review. Judge Shiras held, in substance, that, where the estate of a bankrupt includes real property, subject to the liens of valid mortgages and judgments, the court may order it sold by the trustee in bankruptcy, free of incumbrances, the liens being transferred to the proceeds of the sale; and may direct the method of sale and distribution so as to protect the rights and interests of all parties concerned. In re Emrich (D. C.) 101 Fed. 231, was a case where an order was taken before the referee to compel the wife of the bankrupt to surrender a license to occupy a stall in the city market. She appeared before the referee, and, without raising the question of jurisdiction, filed an answer, in which she averred that the license in question was a mere personal privilege; that it was not a right which passed to the trustee. The referee held otherwise, and his judgment was affirmed by the district court. In that case she raised no question of jurisdiction before the referee until he had found against her. She afterwards insisted, before the court, on review, not that the conclusion reached by the referee was wrong, but that the referee had no jurisdiction of the case presented. The court held otherwise, declining to say whether he would have entertained jurisdiction of the matter if she had, in apt time, objected to the jurisdiction of the court, and says: "Whether she could thus be brought in by rule, and her claim determined by this means, if objected to, is a question not now, before us, and upon which we express no opinion. Suffice it to say, she has submitted herself to the jurisdiction of the court, has invited its action upon her rights, and, having taken the chance of a favorable decision of the referee, she cannot now, for the first time, complain of lack of jurisdiction when the decision is adverse. Mays v. Fritton, 20 Wall. 418, 22 L. Ed. 389; Adams' Appeal, 113 Pa. 454, 6 Atl. 100; Edgett v. Douglass, 144 Pa. 100, 22 Atl. 868, 12 Enc. Prac. 191." Pl. & P The bankrupt in that case was ordered to execute and deliver to the trustee in bankruptcy a transfer and assignment of the license. The last case cited seems to be as strongly in point as it can be. Savage and the Chaunceys, having submitted themselves to the jurisdiction of the court, and invited its action upon their The only difference between this section of the act of 1895 and section 4737 of Sandels & Hill's Digest is that the liens are extended over bridges, boats, and vessels. In other respects the substance of section 5 is the same as the substance of section 4737, Sand. & H. Dig., so far as it relates to the priority of liens. Section 5, therefore, enlarges the protection of the laborer, mechanic, and material man. It is clear, therefore, without looking further at the act of 1895, that it was the intention of the legislature to further extend protection to these classes of people. Section 3, however, of that act, is the one upon the interpretation of which this case must turn. That section is as follows: "The lien for the things aforesaid, or work, shall attach to the buildings, erections or other improvements, for which they were furnished or work was done, in preference to any prior lien or encumbrance or mortgage existing upon said land before said buildings, erections, improvements or machinery were erected or put thereon, and any person enforcing such lien may have such building, erection or improvement sold under execution, and the purchaser may remove the same within a reasonable time thereafter; provided, however, that in all cases where said prior lien or encumbrance or mortgage was given or executed for the purpose of raising money or funds with which to make such erections, improvements or buildings, then said lien shall be prior to the lien given by this act." Omitting any notice for the present of the proviso to that sectior, what was the purpose of the legislature in adding that section to section 5? By section 5, which is the same in substance as section 4737, Sand. & H. Dig., as interpreted in Apperson v. Farrell, 56 Ark. 640, 20 S. W. 514, if a mortgagee took a mortgage upon premises upon which a building was being erected, his mortgage was postponed to the liens of the men who did the work and furnished the material; and in that case the lien of the men who did the work or furnished the material to improve it extended not only to the improvements, but also to the land. In section 3 the rule is different. In that section the legislature extended to the men who furnished the material and did the work upon improvements on land upon which a mortgage existed before the improvements or erection of the buildings were made,-a lien, not upon the land covered by the mortgage which was made before any work or improvement was done upon it, but on the improvements, and gave them the right to sell the same, and the purchaser the right to remove them from the premises; so that, where a mortgagee held a mortgage upon a piece of land upon which the owner thereof afterwards procured mechanics and laborers to construct a building, and material men to furnish the material with which to construct it, if the mechanics, laborers, and material men enforced their lien as the statute provided, the mortgagee still had his mortgage upon the land, but the mechanic, the laborer, and the material men had their liens fixed upon the improvement, which their own labor and material had constructed. This section, therefore, went further than section 5, and further than section 4737 of Sandels & Hill's Digest, in this: that, without reference to when the mortgage was made, whether before or after the buildings, erections, or improvements were begun, the mechanic, laborer, and material man were |