§§  256,  257.]     PRIORITIES  between  mortgages,  etc. 279

holders  may  intervene  and  have  their  rights  adjusted. Not  being
obliged  to  intervene,  they  have  a  right  to  come  into  a  court  of  con-
current jurisdiction,  and  compel  any  plaintiff  whose  claim  originated
after  the  mortgage  was  made  to  prove  affirmatively  the  existence
and  priority  of  his  lien  under  the  provisions  of  the  statute.^

§  256. Stockholder  in  Construction  Company  ^vhich  floats  and
guaranties  Bonds,  entitled  to  claim  a  Lien. —  The  fact  that  a  con-
tractor is  a  stockholder  in  a  construction  company  which  places
the  bonds  upon  the  market,  and  guaranties  that  sufficient  money
will  be  forthcoming  from  local  subscriptions  and  grants  to  prepare
the  road  for  the  reception  of  the  rails,  will  not  estop  him  from  setting
up  his  lien  against  the  mortgage. The  remedy  for  the  breach  of
such  a  guaranty  is  against  the  company  as  such,  and  not  against
an  individual  stockholder  who  had  nothing  to  do  with  giving  it.^

§  257. Statutes  declaring  Liens  in  Favor  of  Debts  arising  from  the
Operation  of  the  Road,  Effect  of. —  In  Tennessee  an  act  declares
that  "  no  railway  company  shall  have  power  to  execute  a  mort-
gage which  shall  be  binding  against  decrees  and  judgments"  for
material  and  work,  or  for  damages  to  person  or  property,  in  the
operation  of  the  road. A  lien  obtained  under  this  act  is  binding
on  the  road  in  the  hands  of  the  purchasers.^

But  a  sub-contractor  cannot  avail  himself  of  its  provisions,
owing  to  the  peculiar  nature  of  the  remedies  to  which  he  is  con-
fined by  the  statute  defining  his  rights  in  Tennessee.*

The  act,  it  is  held,  does  not  violate  the  contract  of  the  State
with  the  company.^

In  North  Carolina  the  statutory  priority  of  certain  claims  de-
pends on  two  sections  of  the  Code,  —  685,  1255. The  first  of
these  provides  that  a  mortgage  (or  other  conveyance)  shall  be
"  void  "  as  to  existing  creditors,  and  as  to  torts  committed  by  the
company  prior  to  or  at  the  time  of  the  execution  of  the  deed,
provided  the  action  to  enforce  the  claim  is  commenced  within
sixty  days  after  its  registration. The  second  declares  that  mort-
gages shall  not  have  power  to  exempt  the  property  or  earnings  of
the  corporation  from  executions  on  judgments  obtained  for  labor
or  materials  or  torts. 