Lien

A French word which originally signified a string, tie, or band, and in the metaphorical sense in which the law now uses it, it signifies the hold or claim which one person has upon the property of another as security for the satisfaction of a debt, duty or demand, by which he may, if in possession of the property, detain it until the same is satisfied.

2 South. (N. J.) 441.

Actual possession by the lien claimant being essential.

62 Barb. (N. Y.) 323; 26 Wend. (N. Y.) 467.

The term may be defined as a charge imposed on specific property, real or personal, by which it is made security for the performance of an act.

4 Cliff. (U. S.) 225.

In every case in which property, either real or personal, is charged with the payment of a debt or duty, every such charge may be denominated a lien on the property. It differs from an estate in or title to the property, as it may be discharged at any time by payment of the sum for which the lien attaches. It differs from a mortgage in the fact that a mortgage is made and the property delivered, or otherwise, for the express purpose of security; while the lien attaches as incidental to the main purpose of the bailment, or, as in case of a judgment, by mere act of the law, without any act of the party. In this general sense, the word is commonly used by English and American law writers to include those preferred or privileged claims given by statute or by admiralty law, and which seem to have been adopted from the civil law, as well as the security existing Liens are divided, in rei^eot to their origin and nature, into common law, civil law, equitable, maritime, and statutory. (1) Common-law liens. As distinguished from the other classes, they consist in a mere right to retain possession until the debt OF charge is paid. In the case of a factor, an apparent exception exists, as he is allowed a lien on the proceeds of goods sold, as well as on the goods themselves. But this seems to result from the relation of the parties, and the purposes of the bailment; to effectuate which, and at the same time give a security to the factor, the law considers the possession, or right to possession, of the proceeds, the same thing as the possession of the goods themselves. A particular lien is a right to retain the property of another on account of labor employed or money expended on that specific property.

Whit. Liens, 9.

A general lien is a right to retain the property of another on account of a general balance due from the owner. 3 Bos. & P. 494. (2) Civil-law liens. The civil law embraces, under the head of mortgages and privilege, the peculiar securities which, in the common and maritime law, and equity, are termed "liens." In regard to privilege, Domat says: "We do not reckon in the number of privileges the preference which the creditor has on the movables that have been given him in a pawn, and which are in his custody. The privilege of a creditor is the distinguishing right which the nature of his credit gives him, and which makes him to be preferred before other creditors, even those who are prior in time, and who have mortgages." Domat. Civ. Law, pt.

1, lib. iii. tit. i.

8 v. These privileges are of two kinds: One gives a preference on all the goods, vrtthout any particular assignment on any one thing; the other gives to the creditors their security on certain things, and not on the other goods. (3) Equitable liens. Such as exist in equity, and of which courts of fequity alone take cognizance. A lien is neither a jus in re nor a jus ad rem. It is not property in the thing, nor does it constitute a right of action for the thing. It more properly constitutes a charge upon the thing. In regard to these liens, it may be generally stated that they arise ftom constructive trusts. They are, therefore, wholly independent of the possession of the thing to which they are attached as an incumbrance, and they can be enforced only in courts of equity.

Story, Eq. Jur. § 1217.

An equitable lien on a sale of realty is very different from a lien at law, for it operates after the possession has been (4) Maritime liens. Maritime liens do not Include or require possession. The word lien is used in maritime law, not in the strict legal sense in which we understand it in courts of common law, in which case there could be no lien where there was no possession, actual or constructive; but to express, as if by analogy, the nature of claims which neither presuppose nor originate in possession.

22 Eng. Law & Eq. 62. See 15 Bost. Law Rep. 555; 16 Best. Law Rep. 1, 264; 17 Bost. Law Rep. 93, 421.

A distinction is made in the United States between qualified maritime liens, which depend upon possession, and absolute maritime liens, which do not require nor depend upon possession.

7 How. (U. S.) 729. (6) Statutory liens.

Under this head it is convenient to consider some of those liens which subsist at common law, but have been extensively modified by statutory regulations, as well as those which subsist entirely by force of statutory regulations. The principal liens of this class are judgment liens, and liens of materialmen and builders. Liens, whether common-law, equitable, or statutory, are either conventional, i. e., by express agreement of the parties, or by operation of law, by legal implication from the acts of parties,