On the foreclosure of a mortgage, the fund raised takes the place of the land and is subject to a lien ; Mathews v. Duryee, 17 Abb. Pr. (N. Y.) 256; so also is a balance in court cn the sale of a lessee's interest in land and buildings ; Appeal of Robson, 62 Pa. 405.
The remedy is by scire facias in some states; Merrick v. Avery, 14 Ark. 370; Pratt v. Tudor, 14 Tex. 37; Clark v. Brown, 22 Mo. 140; Donahoo v. Scott, 12 Pa. 45; by pe tition, in others ; Simpson v. Dalrymple, 11 Cush. (Mass.) 308; Dobbs v..Enearl, 4 Wis. 451; McLagan v. Brown, 11 Ill. 519. When the proceeding is by scire facies, it can have no more effect than belongs to that writ, which is substantially a proceeding in rem.
Questions constantly arise under the stat utes giving liens to mechanics and material men as to the respective priority of their liens over those of mortgagees. Questions as to the respective priority, as between such liens and mortgage liens, must be considered with reference to the statutes. Such liens have been held entitled to priority over a previous mortgage so far as a building is con cerned; Carriger v. Mackey, 15 Ind. •App. 392, 44 N. E. 266 ; Bristol-Goodson Electric Light & Power Co. v. Power Co., 99 Tenn.
371, 42 S. W. 19; and also where the labor and materials were furnished upon the mort gagee's agreement that his lien should be subordinated; Cummings v. Emslie, 49 Neb. 485, 68 N. W. 621; but the mere fact that the mortgagee told the contractor to go ahead with the work of building upon the mort gaged premises is not a waiver of priority ; Security Mortgage & Trust Co. v. Caruthers, 11 Tex. Civ. App. 430, 32 S. W. 837. As be tween mortgages and subsequently filed me chanics' liens, the mortgage was held superi or in Bartlett v. Bilger, 92 Ia. 732, 61 N. W. 233; Wimberly v. Mayberry, 94 Ala. 240, 10 South. 157, 14 L. R. A. 305 ; Central Trust Co. v. Continental Iron Works, 51 N. J. Eq. 605, 28 Atl. 595, 40 Am. St. Rep. 539 ; Munger v. Curtis, 42 Hun (N. Y.) 465 ; and the me chanic's lien was held superior in lookout Lumber Co. v. Ry. Co., 109 N. C. 658, 14 S. E. 35; Allen v.*Oxnard, 152 Pa. 621, 25 Atl. 568; Carew v. Stubbs,' 155 Mass. 549, 30'N. E. 218; Pacific Mut. Life Ins. Co. v. Fisher, 106 Cal. 224, 39 Pac. 758 ; Erdman v. Moore, 58 N. J. L. 445, 33 Atl. 958. For a collection of cases upon this question of priority see Wimberley v. Mayberry, 94 Ala. 240, 10 South. 157, 14 L. R. A. 305.