building on the demised premises, but had been expended for other purposes, the mortgagees were entitled, by virtue of the proviso to section 3 of the mechanics' lien law, supra, to priority of payment over the mechanics' lien claimants. The lower court, in an able and carefully prepared opinion (reported in Re Matthews, 109 Fed. 603, 610), decided this question in the negative, holding, in substance, that when a person advances money, taking security therefor in the form of a mortgage, which was borrowed by the mortgagor for the professed purpose of erecting a building or improvements on the mortgaged premises, he can claim no priority of lien over persons who have performed labor or furnished materials for the erection of such building or improvements subsequent to the execution of the mortgage, except for such part of the money so advanced by the mortgagee as was actually expended in the erection of such building or improvement. The majority of the members of this court are of opinion that the conclusion reached by the learned judge of the lower court was right, and that it should be affirmed. The lien law in question is a remedial statute. It was enacted to secure to laborers, artisans, and others who perform labor or furnish materials for the erection of buildings on the land of others, payment for such services and materials, by giving them a lien on the structures which they have helped to create, instead of compelling them to rely merely on the personal security of the debtor. That such laws are fair and just, and that they also tend to encourage the erection of buildings by insuring payment for the labor and materials that are expended in their erection, has been generally recognized. Davis v. Bilsland, 18 Wall. 659, 661, 21 L. Ed. 969. As such laws are remedial in their nature and are prompted by a wise policy, they should be liberally construed in favor of the class of persons for whose benefit they were intended.

The first section of the act now under consideration declares that those who do work or furnish materials for the erection of an improvement on land shall be entitled to a lien therefor on the land and the improvement. This is a general rule applicable to all cases, and the burden is upon one who disputes the existence of a lien for work done or materials furnished for the purpose aforesaid to make good such contention. Section 3 of the act deals with the subject of priorities, when there are other liens of a different character, the rule prescribed being that, in so far as the improvement is concerned, mechanics' liens shall be preferred over all liens existing on the land even before the improvements were erected, and that they may be sold and removed for the benefit of the laborer and material

Then follows the proviso that when a prior lien, by way of mortgage, is given for the purpose of raising money to erect improvements, it shall be entitled to priority. In framing this section. of the act the legislature evidently had in mind the comparative equities of one who supplies labor or material for improvements on land and one who furnishes money which is actually expended for the erection of such improvements. These equities were regarded. as being equal; hence the proviso declared, in substance, that the lien which was prior in point of time should be preferred. That

portion of the section, however, which precedes the proviso, clearly recognizes the fact that the equity of one who simply loans money secured by a mortgage on land, which is not used to improve it, is inferior to that of a materialman or laborer who subsequently contributes to the erection of improvements on the land under a contract with the owner, thereby enhancing its value; and the latter lien, as respects the improvement, is preferred. We are constrained to believe that the legislature did not intend to prefer the lien of the mortgagee over that of a laborer or materialman when the former loans his money on the representation that it is borrowed for the purpose of improving the mortgaged property, unless it is in fact expended for that purpose. The contrary view of the statute, that the mere expression by the mortgagor of a purpose to use the money borrowed to improve the mortgaged premises entitles the mortgagee to a preference, would, in effect, nullify that part of section 3 which precedes the proviso, as is very clearly shown in the opinion of the lower court (109 Fed. 311, 312); for, as the proviso does not specify any time, prior to the commencement of an improvement, within which the money must be loaned by the mortgagee, it follows that if it is loaned years before the improvement is commenced, and not a dollar enters into the improvement, nevertheless the mortgagee may successfully assert his priority on the ground that when the loan was made the mortgagor represented that it was to be used for the purpose specified in the proviso. This seems to be a very unreasonable interpretation of the statute, and one that would enable a mortgagee to defeat an equity which the statute clearly recognizes as superior, and an equity which it was designed to protect. Such an interpretation of the statute can hardly be supposed to have been within the contemplation of the lawmaker, when we reflect that the general purpose of the act was to afford greater security to laborers and materialmen, and to restrict, in a measure, the rights of other lienholders. The lien law in question was framed, we think, with reference to the known habits of men who loan money on the security of real estate, with the understanding that it is to be used to enhance its value by improving it. In such cases, as the legislature well knew, the lender usually sees to it that the money is used as the borrower promised to use it. The mortgagees did so in the case in hand; they evidently construed the statute as we construe it; they paid the money, not to the mortgagor to be expended as he thought best, but to laborers and materialmen, except the sum of $1,000, which amount the mortgagor managed to obtain and used for a different purpose. Therefore, when the proviso gives a preference to mortgagees if they loan money for the purpose of improving mortgaged property, it refers to an executed purpose, and not merely to a purpose expressed by the mortgagor at the time of the loan, which is not carried into effect. If the purpose of the loan is not consummated, the equity of the lender is inferior to that of a mechanic's lien holder.

This view of the statute is confirmed by the tenth section of the act, the substance of which is stated above. By that section the mortgagee is given power to call upon contractors for the erection of an

improvement, at any time, for the names of all materialmen and laborers and the amount due to each, and the contractor is required, under a heavy penalty, to give correct information; the evident purpose of this provision being to enable the mortgagee to expend the money which he loans, exclusively for the payment of such bills. But the act contains no corresponding provision enabling a materialman or a laborer to call upon a mortgagee for information concerning the purpose for which the money secured by his mortgage was loaned and compelling the latter to give such information. He can keep his own counsel, stand by and see materialmen and laborers expend their substance in making the mortgaged property more valuable, and then come forward and assert that by virtue of an oral representation made by the borrower, which was known only to himself, he is entitled to priority. We are of opinion that the legislature did not intend to place laborers and materialmen in that situation.

We are aware that some courts have at times expressed, in strong terms, the necessity of reading and enforcing statutes literally without regard to consequences. Some of these utterances have been called to our attention. But this doctrine of literalism which clings to the letter of a statute and ignores its purpose is not well calculated to promote the ends of justice, and has not been viewed with favor, at least by the federal courts. It is not the duty of a court of justice to perpetuate mistakes inadvertently made by the lawmaker by a blind adherence to the letter of a law, when the purpose of the law is apparent. A legislative enactment should always be so construed as to give effect to the intention of the lawmaker, when it is discernible, even if the language employed to express the intent is in some respects inapt and faulty. This is the primary canon of construction, which dominates all others, inasmuch as construction consists solely in finding out the intent of the lawmaker, with the aid of all such light on the subject as can be obtained. Legislative bodies are not always fortunate in the use of language, but, if careful attention is paid to all the provisions of a statute as well as to the conditions which led to its enactment, little difficulty will generally be experienced in ascertaining what was intended. When the purpose is discovered it should be given effect, since whatever is within the intention of the lawmaker is as much within the statute as if it was within the letter. U. S. v. Freeman, 3 How. 556, 565, 11 L. Ed. 724; U. S. v. Babbitt, 1 Black, 55, 61, 17 L. Ed. 94. It sometimes happens that the language employed in one paragraph of a statute acquires a new meaning that no one can dispute when read in connection with other provisions of the act, or in connection with prior legislation on the same or a cognate subject, or in the light of the end to be accomplished or the circumstances that gave birth to the enactment. In interpreting and enforcing a statute, therefore, no court should overlook these means of information merely out of deference to particular words of the act which, through haste or inadvertence, may not fully or accurately express its true purpose. Nor are the courts in the habit of giving effect to laws strictly according to the letter, ignoring all other considerations. They will sometimes supply exceptions to a general rule, where none is expressed, as in Hanger v. Abbott,

6 Wall. 532, 18 L. Ed. 939, where an exception was implied, although none was expressed, thereby taking a case out of the operation of the statute of limitations. In like manner they will supply words where they seem to have been unintentionally omitted, as in Kennedy v. Gibson, 8 Wall. 498, 506, 19 L. Ed. 476, where the word "by" was supplied so as to permit actions in the federal courts to be brought "by" national banks as well as "against" them. Previous legislative enactments and definitions of terms therein contained that have been repealed may also be consulted for the purpose of ascertaining what is meant by like terms as used in subsequent enactments. Ex parte Crow Dog, 109 U. S. 556, 3 Sup. Ct. 396, 27 L. Ed. 1030. And where, by certain clauses of a statute relating to the removal of cases to the federal court, the right had been confined to nonresident defendants, thereby establishing a legislative policy on the subject, it was held by this court that the same restriction would be implied in another clause of the act, although it was not in terms expressed. Thurber v. Miller, 14 C. C. A. 432, 67 Fed. 371. The decisions in Fisk v. Henarie, 142 U. S. 459, 12 Sup. Ct. 207, 35 L. Ed. 1080, and McDonnell v. Jordan, 178 Ü. S. 229, 20 Sup. Ct. 886, 44 L. Ed. 1048, also illustrate in a striking manner to what extent the express words of a statute will be ignored when it is deemed necessary to do so to give effect to the legislative purpose. In those cases the court was dealing with the second section of the judiciary act of 1887 (25 Stat. 433, 435, c. 866), which permits the removal of causes from the state to the federal court on the ground of prejudice or local influence "at any time before the trial thereof." Notwithstanding the use of the latter words, the supreme court decided, basing its ruling on previous legislation and also on the general purpose of the act to restrict jurisdiction of the federal courts, that cases could not be removed on the ground of prejudice and local influence unless the removal was applied for, not as the words of the act declared, "at any time before the trial," but only in the event that the application for a removal was made before or at the term at which the cause could be first tried. In the case of United States v. Southern Pac. R. Co., 184 U. S. 49, 56, 57, 22 Sup. Ct. 285, 46 L. Ed. 425, the supreme court further enforced the doctrine, quoting with approval a paragraph from Potter, Dwar. 231, that a court should always so construe a remedial statute as to give effect to the intent of the lawmaker, even if in doing so it is necessary to go beyond the letter of the statute. Indeed, it may be stated generally that no inaccuracy in the use of language, or grammatical errors, or the omission of words or phrases, or the use of the wrong word, will serve to defeat the intent of the lawmaker when the intent can be definitely ascertained. Bish. Cont. § 383.

Without pursuing the subject at greater length, it will suffice to say that, after a careful study of the lien law in question, we are of opinion that it was not the intention of the legislature to give mortgagees a preference over the holders of mechanics' liens whose liens are. subsequent in point of time, unless the money which they advance is actually expended in the erection of the improvement to which the controversy relates. A mortgagee who does not see to it that the

money advanced is thus expended is in no better situation than one who loans money without any representation on the part of the borrower respecting the use that will be made of it.

With respect to the claim of Dyke Bros., the lower court found that they had furnished materials for the erection of the building in question on the representation of the mortgagees' agent that he had $1,500 of the mortgagees' money still in his hands unexpended, and that he would see that they were paid for the materials which they supplied out of that fund. For this reason its order of distribution, - as heretofore stated, directed that Dyke Bros. should be paid, in preference to the mortgagees, out of the proceeds realized from the sale of the mortgaged property. This finding by the lower court is amply sustained by the testimony, and we would not be warranted in finding to the contrary upon the evidence contained in the present record. Moreover, as the order which was made by the lower court for the distribution of the fund will avoid circuity of action and discharge an obligation to pay the claim of Dyke Bros., which the mortgagees by their agent (to whom the mortgage, as it seems, has now been assigned) assumed, we think that the order, in so far as it concerns the claim of Dyke Bros., should not be disturbed, even if it be true that the facts as found by the trial court are not sufficient to estop the appellants from asserting the priority of their mortgage lien. The facts as found by the lower court do show that the mortgagees are bound to see that the claim of Dyke Bros. is paid in full, and the order accomplishes that object without the necessity of further litigation.

In framing the order for the distribution of the fund, the lower court seems to have overlooked the fact that the third section of the mechanics' lien law, to which the present discussion relates, gives to laborers and materialmen a preference over a prior incumbrance only as respects the improvements that are erected and not as respects the land. It may be that the sale will produce enough to discharge all the liens, and it may be that the circumstance last mentioned, though fully understood by the trial court, was not regarded as of any special importance for that reason. If enough will not be realized from the sale to discharge the mortgage in full according to the priorities as they have been declared, then the order of distribution as made should be modified so as to secure to the mortgagees, except as to Dyke Bros., their priority as respects the land. Possibly it may be necessary, before the sale, to ascertain the comparative value of the land and improvements as a means of determining the sum realized from each. If such a course is found to be necessary, the sum realized from the land should be applied pro rata so as to reduce that part of the mortgage debt amounting to $3,000, which is entitled to priority, as respects the improvements, as well as that part of the mortgage debt, to wit, $1,000, which is not entitled to such priority. If the fund is adequate to pay all the liens, no comparative valuation of the land and improvements would seem to be necessary, as no one will be injured by the enforcement of the existing order. Finding no other error in the order, it will be affirmed except in the respect last mentioned, and the record will be remitted to the