investment company knew that its bonds and mortgage were, and would remain, of no value unless the railroad should be constructed; it knew that in order that such a road should be constructed that material and labor were indispensable, and that the Nebraska statute guarantees a lien to those who should furnish them. The investment company made Erb and the Wyandotte company its agents for the purposes of this construction, and it owed the duty to persons furnishing material and labor in the building of this railroad to see that the money advanced was applied to the payment of their claims.

640 Another point made by the appellant is that Kilpatrick Bros. & Collins, by their conduct, have waived their rights to a lien. It appears that, after the completion of the work, one Strohm, who was their accountant and book-keeper, together with Erb, the president of both railroad companies, made a computation and agreement as to the amount remaining unpaid under the contract, and received from the latter accepted drafts upon the Wyandotte company for that amount; but he testified, without contradiction, that it was expressly agreed that these drafts were not taken or to be considered as payment, but only as collateral security therefor, and as constituting a record of the computation and accord; and that there was no agreement for the relinquishment of any existing or prior obligation in favor of his principals, and that no such release was intended by him, nor, so far as he was aware, by Erb. We do not think that the mere receipt of the drafts under such circumstances amounted to a waiver, which, in the absence of an express agreement, will not be presumed or implied contrary to the intention of the party whose rights would be injuriously affected thereby, unless by his own conduct the opposite party has been misled, to his prejudice, into the honest belief that such waiver was intended, or consented to; and it is not claimed that such was the case bere.

In Farlow v. Ellis, 15 Gray, 229, it is said: "Waiver is a voluntary relinquishment or renunciation of some right, a foregoing or giving up of some benefit or advantage which, but for such waiver, he [the party relinquishing] would have enjoyed. It may be proved by express declaration, or by acts and declarations manifesting an intent and purpose not to claim the supposed advantage, or by a course of acts and conduct, or by so neglecting and failing to act, as to induce a belief that it was his intention and purpose to waive. Still, voluntary choice not to claim is of the essence of waiver, and not mere negligence."

In Jones on Liens, section 1011, it is said: "The mere taking 641 of security for the amount of a debt for which a lien is claimed does not ordinarily destroy the lien. To have this effect there must be something in the facts of the case, or in the nature of the security taken, which is inconsistent with the existence of the lien and destructive of it."

"SEC. 1013. The taking of a mortgage upon the same property upon which the creditor claims a statutory lien may not displace the lien. The mortgage is regarded as a cumulative security, and the creditor may enforce either the lien or the mortgage. So, also, the taking of the collateral obligation of another person for the payment of the lien debt does not ordinarily debar the lienholder from claiming the security of his lien, unless the circumstances are such that an intention to waive the lien may be reasonably inferred": Payne v. Wilson, 74 N. Y. 348.

The appellant pleaded, by way of cross-petition to the claim of the Fort Scott company, that the latter had intervened in an action still pending in the United States circuit court for this district concerning the same matter, and that that court, by an interlocutory decree, had adjudged the lien of the intervenor to be superior to that of appellant. An interlocutory order or finding in a pending suit in equity in a federal court is not a final determination of the rights of the parties, but one which may be modified or discharged at any time before the enrollment of the final decree: Ayres V. Carver, 17 How. 592; Thomas v. Wooldridge, 23 Wall. 283; Forgay v. Conrad, 6 How. 201; Ex parte Jordan, 94 U. S. 248. This order, therefore, did not merge the claim of the Fort Scott company, and was not a bar to the litigation of the same matters in the state court. The mere pendency in the courts of another jurisdiction of an action between the same parties, and concerning the same subject matter, cannot be successfully pleaded in bar or abatement: Gordon v. Gilfoil, 99 U. S. 168; Sharon v. Hill, 22 Fed. Rep. 28; Stanton v. Embrey, 93 U. S. 548, and authorities there 642 cited. A demurrer to this answer was therefore properly su8tained.

The foregoing conclusions we regard as decisive of the case and as rendering unnecessary the determination of other questions, some of them important and far-reaching, which are discussed in the briefs. The judgment of the district court is, therefore, in all things, affirmed.

POST, J., dissented, and concurred in an opinion submitted by Commis sioners Irvine and Ryan, in which the conclusion is reached that, as between the mortgage lien and the construction or mechanics' liens in suit, the latter have no priority and do not displace the former. In such opinion it is observed in a general way that the state statutes permit railway companies to mortgage their property and franchises for the purpose of securing money borrowed by them for the construction and equipment of their roads, and it is also provided that such mortgages may include, not only the property owned by the companies making them at the time of their date, but property, both real and personal, thereafter acquired by them. The state statute also provides for liens upon railroads to secure laborers and materialmen for labor performed and material furnished for the construction, repair, or equipment of railroads. This statute, though passed at a different time, as a distinct act, is so far analogous to the general mechanics' lien law as to induce the necessary conclusion that the construction placed on the latter must apply to the former, namely, that the lien attaches from the time labor is begun or the first material furnished, but as between two or more lienors upon the same improvement there is no priority unless the intervening rights of third persons require a different rule. "A railroad is an entity. Its whole line, including right of way, roadbed, stations, shops, equipment, and all property necessary for the effective operation of the road, in its entirety, constitutes a single property, which cannot, in the absence of statute or of peculiar equities of a very controlling character, be dismembered by selling different portions separately. The mortgage here in question, and the liens, must be treated as coextensive in regard to the property upon which they operate, unless a separation of this property is practicable, and required by the equities of the case." Applying the ordinary rule, the construction liens in the present case would not attach until more than a month after the time that the mortgage had become a lien upon the property. "It is claimed, however, that under the facts of this case the mortgage should be subordinated to the construction liens. The principal ground upon which this contention is based is that a mortgage upon after-acquired property attaches to such property only to the extent of the mortgagor's interest therein, and subject to any liens existing thereon at the time of its acquisition by the mortgagor." This principle is subject to the contingency, however, that existing liens cannot be displaced in its application. The principle of law governing the question in dispute is thus briefly stated by the commissioners: "A mortgage covering after-acquired property attaches to such property as it is acquired by the mortgagor. Where such property remains separable and susceptible of separate ownership the mortgage only attaches to the interest of the mortgagor therein, and does not displace existing liens thereon. Where, however, the after-acquired property becomes inseparably a portion of the real estate to which the mortgage has attached, the mortgage extends to such property, as in the familiar case of a house erected upon a lot burdened by a mortgage. In that case no one would now have the hardihood to claim under the statute that liens for the construction of the house should displace the mortgage, in the absence of special circumstances operating by way of estoppel. Perhaps the best elucidation of the whole question is found in the case of Toledo etc. R. R. Co. v. Hamilton, 134 U. S. 296, where Mr. Justice Brewer reviews the authorities, and holds that a blanket mortgage creates a lien whose priority cannot be displaced by a contract between the (railroad) company and a third party for the erection of

buildings or other works of original construction." In support of this view, and the rule that the lien created by a mortgage covering afteracquired property is not displaced by liens arising from improvements placed upon the mortgaged property: Galveston R. R. Co. v. Cowdrey, 11 Wall. 459; United States v. New Orleans R. R. Co., 12 Wall. 362; Fosdick v. Schall, 99 U. S. 235; Fosdick v. Car Co., 99 U. S. 256; Myer v. Car Co., 102 U. S. 1. In Thompson v. White Water Valley R. R. Co., 132 U. S. 68, a mortgage covering after-acquired property was decided to be superior to liens arising from furnishing money for the construction of a portion of railroad upon the profits of that portion constructed within the original charter of the railroad. The commissioners, in reviewing and distinguishing the authorities relied upon to establish the converse of the above doctrine, say: "The case of Brooks v. Burlington etc. R. R. Co., 101 U. S. 443, was decided upon the statutes of Iowa, which, in terms, allow to mechanics a lien upon the building, erection, or improvement prior to that of a preexisting mortgage upon the land. Our statutes are not in this respect similar to those of Iowa. Williamson v. New Jersey S. R. R. Co., 28 N. J. Eq. 277, 29 N. J. Eq. 311, is much relied upon by appellees. In that case certain docks were constructed for the Long Branch & Seashore Railroad Company, and the lien claim was filed against the New Jersey Southern company as builder and the Seashore road as owner. The Southern company seems to have owned a controlling interest in the stock of the Seashore company, but there had been no consolidation of the roads, nor any formal purchase or conveyance. The lien for the construction of the docks was held to be superior to a blanket mortgage given by the New Jersey Southern company, and this priority was established upon the ground that the mortgage of the Southern company attached to the whole of the property of the Seashore company, subject to existing liens. It is plainly intimated that, had the work been done for the Southern company upon land then owned by it, the decision would have been different.

"In Botsford v. New Haven etc. R. Co., 41 Conn. 454, the lien was for the construction of a depot upon land whose owner agreed to give it to the company, provided that it would build a depot thereon. No conveyance was in fact made, and the lien for construction was held superior to a blanket mortgage upon the railroad, because the legal title had never vested in the railroad, and the equitable title did not vest in it until the depot was completed and after the lien attached.

"In Farmers' Loan & Trust Co. v. Canada etc. R. R. Co., 127 Ind. 250, the court expresses a grave doubt as to whether, under the law of Indiana, a mortgage can be made to attach to after-acquired property in any event, and the authority of the case upon this question is weakened by the exist ence of that doubt. Moreover, the court disclaims any attempt to lay down a general rule, but holds that under the special facts of that case the construction lien was superior to the mortgage, and the court was undoubtedly right in its conclusion. The bonds, to secure which the mortgage was given, were issued to a construction company, and the court held that this construction company could not set up the bonds given to it under these circumstances as superior to the liens of materialmen for debts which the construction company itself owed them. It appeared that the construction company had hypothecated a portion of the bonds; but when, where, and to whom these bonds had been pledged did not appear, and the court could not, in that litigation, consider the rights of the pledgees.

"In the Farmers' Loan & Trust Co. v. Kansas City etc. R. R. Co., 53 Fed.

Rep. 182, Judge Caldwell, in an exceedingly lucid, vigorous, and learned opinion, discusses the relative equities of such mortgages and liens, bat (30 far as the case is analogous to this) upon the basis of what the law ought to be, rather than what it has heretofore been declared to be, and gives prior. ity to certain liens as against a mortgagee of the railroad, because of condi. tions imposed upon the mortgagee in the appointment of a receiver at ita instance, the conditions receiving the assent of the mortgagee. While we are not disposed to question the correctness of the abstract opinions expressed by Judge Caldwell, nor of his determination of the law as applied to that case, his conclusions are not applicable to this case, where the mortgagee stands upon its vested rights, and has not consented to any displace ment of its lien, nor asked the court for any relief authorizing the court to impose upon it similar conditions."

But the appellees contend, nothwithstanding the principles contended for in this opinion, "they cannot be urged in support of this mortgage, because the bonds, to secure which the mortgage was given, were not in the hands of bona fide holders for value. We can see no force in this contention. In one sense it might be said that the investment company does not occupy the position of a bona fide holder; that is, it took the bouds with full knowledge of the facts. It knew that the railroad had not been constructed; it was bound to know that, under the law, persons furnishing material or perform. ing labor in the construction of the road might become entitled to liens thereon; and if the rights of the bondholders depended upon their ignorance, at the time of receiving the bonds, of outstanding equities in favor of third persons, they certainly could not be considered bona fide holders without notice. But their rights do not depend upon their establishment of such ignorance. The investment company is a holder for value. It has advanced the whole loan of $260,000, and we take it that no one will question the doctrine that a pledgee of such securities is a holder for value to the extent of the indebtedness for which they stand pledged. The case of Farmers' Loan & Trust Co. v. Canada etc. R. R. Co., 127 Ind. 250, is not opposed to this view. The pledgees in that case were not protected, because, in the language of the court, there was no evidence as to when, where, or to whom these bonds had been pledged.' The investment company advancing its money in good faith, and promptly recording its mortgage, had a right to rely upon its priority in time, and the lienors, by the record of that mortgage, were notified of the existence of its lien, and entered into their contracts and into their performance with such notice. Many of the cases in the supreme court of the United States heretofore cited support this view: See, too, on this point, Henry v. Fisherdick, 37 Neb. 207.

"The majority opinion is largely based upon the conclusion that the investment company made itself a promoter or principal in the construction of the road. This conclusion is reached upon the doctrine first estab lished in this state in the case of Bohn Mfg. Co. v. Kountze, 30 Neb. 719. The principle decided in that case has recently been much discussed in the cases of Pickens v. Plattsmouth Investment Co., 37 Neb. 272; Holmes v. Hutchins, 38 Neb. 601, and Sheehy v. Fulton, 38 Neb. 691; post, p. 767. It is not necessary to repeat that discussion. We do not think the facts of this case warrant the court in applying that doctrine. Wherever it has been applied it has been for the purpose of charging the estate of the owner in fee on account of improvements made by his executory vendee. The court has in all cases for its application required the proof of facts sufficient to create the vendee the agent of the vendor expressly or by implication. Its