Page:North Dakota Reports (vol. 2).pdf/277

“take precedence over an intervening incumbrance, we think we would shock the moral sense of the profession, and fail to carry out the intent of the legislature.” In that case there was no question of alteration in the original plans, or enlargement upon the building, and the court holds that the lien of each mechanic or material-man attaches only from the time he commences the performance of his contract. The case stands alone, however. No other case can be found going to the same extent. Appellant also cites in support of its position Soule v. Dowes, 7 Cal. 575. But in that case the facts were of an entirely diferent character. There the lot owner entered into a contract for the erection and completion of a building for a consideration certain, to be paid part in money and part by the conveyance to the contractors of certain other realty. While the building was in progress of erection the owner mortgaged the property where the building stood to a party who was thoroughly conversant with the terms of the contract with the contractors. After the building was completed the contractors waived the conveyance of the realty that was to be taken in part payment, and took the owner’s note for the amount, and subsequently filed a lien, and sought to have it declared superior to the mortgage. But the court held that the parties could not change the terms of payment to the detriment of the mortgagee. The language used by the California court was entirely pertinent to the facts in that case, but certainly never was intended to apply to the facts of a case like the one before us. This case was again before the supreme court in 14 Cal. 250. At that time a new element was introduced into the case in the form of a claim for extra work not covered by the compensation fixed in the original contract. The court allowed the claim as superior to the mortgage, but upon the theory that the extra work was done with the mortgagee’s knowledge, and without any objection on his part, and the language used would indicate that the claim would not have been allowed under other circumstances. The cases that have held that the lien for labor or material was paramount to the lien of the mortgage executed after the building was commenced, but before such labor or material was furnished, are very numerous. The leading ones are Neilson v. Railway