lien

At common law there can be no lien without possession. It is there defined, a right in one man to retain that which is in his possession belonging to another, till certain demands of him, the person in possession, are satisfied. In maritime law, liens exist independently of possession, either actual or constructive. In courts of equity, the term lien is used as synonymous with a charge or encumbrance upon a thing, where there is neither jus in re, nor ad rem, nor possession of the thing.

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,

A qualified right of property which a creditor has in or over specific property of his debtor, as security for the debt or charge or for performance of some act. 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. Whitak. Liens, p. 1. A lien is a charge imposed upon specific property, by which it is made security for the performance of an act. Code Civll Proc. Cal. § 1180.

In a narrow and technical sense, the term "lien" signifies the right by which a person in possession of personal property holds and detains it against the owner in satisfaction of a demand ; but it has a more extensive meaning, and in common acceptation is understood and used to denote a legal claim or charge on prop erty, either real or personal, for the payment of any debt or duty; every such claim or charge remaining a lien on the property, although not in the possession of the person to whom the debt or duty is due. Downer v. Brackett, 21 Vt. 602, Fed. Cas. No. 4,043. And see Trust v. Pirsson, 1 Hilt. (N. Y.) 296; In re Byrne (D. Ct) 97 Fed. 764; Storm v. Waddell, 2 Sandf. Ch. (N. Y.) 507; Stansbury v. Patent Cloth Mfg. Co., 5 N. J. Law, 441; The Meno-minie (D. C.) 36 Fed. 199; Mobile B. & It. Ass'n v. Robertson, 65 Ala. 382; The J. E. Rumbell, 148 U. S. 1, 13 Sup. Ct. 498, 37 In Ed. 345. In the Scotch law, the doctrine of lien is known by the name of "retention," and that of set-off by the name of "compensation." The Roman or civil law embraces under the head of "mortgage and privllege" the peculiar securities which, in the common and maritime law and equity, are termed "liens." Classification. Liens are either particular or general. The former is a right to retain a thing for some charge or clnim growing out of, or connected with, the identical thing. A general lien is a right to detain a chattel, etc., until payment be made, not only of any debt due in respect of the particular chattel, but of any balance that may be due on general account in the same line of business. A general lien, being against the ordinary rule of law, depends entirely upon contract, express or implied, from the special usage of dealing between the parties. Wharton. Crommelin v. Railroad Co., 10 Bosw. (N. Y.) 80; McKenzie v. Nevius, 22 Me. 150, 38 Am. Dec. 291; Brooks v. Bryce, 21 Wend. (N. Y.) 16. A special lien is in the nature of a particular lien, being a lien upon particular property; a lien which the holder can enforce only as security for the performance of a particular act or obligation and of obligations incidental thereto. Green v. Coast Line R. Co., 97 Ga. 15, 24 S. E. 814, 33 In R. A. 806, 54 Am. St. Rep. 379; Civ. Code Cui. 1903, § 2875. Liens are also either conventional or by operation of law. The former is the case where the lien is raised by the express agreement and stipulation of the parties, in circumstances where the law alone would not create a lien from the mere relation of the parties or the details of their transaction. The latter is the case where the law itself, without the stipulation of the parties, raises a lien, as an implication or legal consequence from the relation of the parties or the circumstances of their dealings. Liens of this species may arise either under the rules of common law or of equity or under a statute. In the first case they are called "common-law liens;" in the second, "equitable liens;" in the third, "statutory liens." Liens are either possessory or charging; the former, where the creditor has the right to hold possession of the specific property until satisfaction of the debt; the latter, where the debt is a charge upon the specific property although it remains in the debtor's possession. Other compound and descriptive terms.

— Attorney's lien. The right of an attorney at law to hold or retain in his possession the money or property of a client until his proper charges have been adjusted and paid. It requires no equitable proceeding for its establishment. Sweeley v. Sieman, 123 Iowa, 183, 98 N. W. 571. Also a lien on funds in court payable to the client, or on a judgment or decree or award in his favor, recovered through the exertions of the attorney, and for the enforcement of which he must invoke the equitable aid of the court. Fowler v. Lewis, 36 W. Va. 112, 14 S. B. 447; Jennings v. Bacon, 84 Iowa, 403, 51 N. W. 15; Ackerman v. Acketman, 14 Abb. Prae. (N. Y.) 229; Mosley v. Norman, 74 Ala. 422; Wright v. Wright, 70 N. Y. 98

— Concurrent liens. Maritime liens are concurrent when they are of the same rank, and for supplies or materials or services in preparation for the same voyage, or if they arise on different bottomry bonds to different holders for advances at the same time for the same repairs. The J. W. Tucker (D. Ct) 20 Fed. 132,

— Equitable liens. such as exist in equity, and of which courts of equity alone take cognizance. A lien is neither a jus in re nor a jns ad rem. It is nut property in the thing, nor does it constitute a right of action for the thing. It more properly constitutes a charge upon the thing. Equitable liens most commonly grow out of constructive trusts. Story, Eq. Jur. § 1215. An equitable lien is a right, not recognized at law, to have a fund or specific property, or the proceeds of its sale, applied in full or in part to the payment of a particular debt or class of debts. Burdon Cent. Sugar Refining Ca. v. Ferris Sugar Mfg. Co. (C. C.) 78 Fed. 421; The Menominie (D. C.) 36 Fed. 199; Fallon v. Worthington, 13 Co.lo. 559, 22 Pac. 960, 6 L. R. A. 708, l6 Am. St. Rep. 231; In re Lesser (D. C.) 10O Fed. 436.

— First lien. One which takes priority or precedence over nil other charges or incumbrances upon the same piece of property, and which must be satisfied before such other charges are entitled to participate in the proceeds of its sale.

— Second lien. One which takes rank immediately after a first lien on the same property and is next entitled to satisfaction out of the proceeds.

— Lien creditor. One whose debt or claim is secured by a lien on particular property, as distinguished from a "general" creditor, who has no such security.

— Lien of a covenant. The commencement of a covenant stating the names of the covenantors and covenantees, and the character of the covenant, whether joint or several. Wharton.

— Retaining lien. The lien which an attorney has upon ali his client's papers, deeds, vouchers, etc., which remain in his possession, entitling him to retain them until satisfaction of his claims for professional services. In re Wilson (D. C.) 12 Fed. 239; In re Lexington Ave., 30 App. Div. 6O2, 52 N. Y. Supp. 203.

— Secret lien. A lien reserved by the vendor of .chattels, who has delivered them to the vendee, to secure the payment of the price, which is concealed from all third persons. As to the particular kinds of liens described as "Bailee's," "Judgment," "Maritime," "Mechanics'," "Municipal," and "Vendors' " liens, see those titles.

In general, a right to possess and retain property, until some charge attaching to it is paid or discharged; in a wider sense, a 436 LIEN

— LIMITATION. in the law maritime, a lien may exist without possession; and so under special provisions of statute, as in cases of judgment lien, the lien of mechanics or material men, or the like. In old English law. A bond or tie.

A qualified right of property which a creditor has in or over specific property of bis debtor, as security for the debt or charge or for perforimance of some act. In every case in which property, either real or personal, is charged with the payment of a debt or duby, every such charge may he denominated a lien onthe property. Whitak. Liens, p. 1. A lien is a charge imposed upon specific property, by which it is made security for the performance of an act. Code Civil Pree. Cal. § 1180. Lien is the right of one man to retain property in his possession belonging to another, until cer tain demands of the party ia possession are satisfied. 26 Wend. 467. And sea i Hilt. 292. Lien is familiarly understood te be a binding or attachment of the thing seoken of, for the benefit of him who is entitled thevets % Hawlks, 309. In the Scottish law, che doctrine of lien is known by the name of “retention,” and that of set-off by the name of “compensation.” Liens are either particular, as a right to retain a thing for some charge or claim growing ont of, or connected with, the identical thing; or general, as a right to retaina thing not only for such charges and claims, but also for a general balance of accounts between the parties in respect to other dealings of the like nature. Liens are also either conventional or by operation of law. The former is the ease where the lien is raised by the express agreement and stipulation of the parties, in circumstances where the law alone would not create a lien from the-mere relation of the parties or the details of their transaction. The latter is the case where the law itself, without the stipulation of the parties, raises a lien, a3 an implication or legal consequence from the relation of the parties or the circumstances of their dealings. Liens of this species may urise either under the rules of common law or of equity or under a statute. In the first case they are called “common-law liens;” in the second, “equitabie liens;” in the third, “statutory liens.” Liens are either possessory or charging; the former, where the creditor has the right the debt is a charge upon the specific property although it remains in the debtor’s possession. Equitable lions are such as exist in equity, and of which courts of equity 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. Lquitable liens most commonly grow ont of constructive trusts. Story, Eq. Jur. § 1215. Maritime liens. Maritime liens do not include or require possession. The word “lien” ig used in maritime law notin the strict legal sense in which we understand it in courts of common law, in which caso 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 & Kg. 62. The civil law lien. The civil law embraces, under. the head of “mortgage and privilege,” the peculiar securities which, in the common and maritime law and equity, are termed “liens.” As to BAILEr’s Lien, Mecnanto’s Lren, and VENDOR’s LIEN, see those titles.

i A tie that binds property to a debt or claim for its satisfaction.^ Originally, a tie or bond. In the metaphorical sense in which it is used in law, such hold or claim upon a thing, for the satisfaction of a debt, duty or demand, that it cannot be taken away until the same be satisfied and paid. 3 A hold or claim which one person has upon the property of another, as a security for some debt or charge.* • A right to possess and retain property, until some charge attaching to it is paid or discharged. 5 In its widest sense, includes every case in which personal or real property is charged with the payment of a debt.'' Lienor. He who is invested with a right of lien; he who may enforce a lien.' Liens exist at common law, arising from usage, express contractor contract implied from dealings; they are recognized in equity and in admiralty; and are created also by statutory enactment. Common-law liens are displaced by surrender of possession. Liens by contract depend upon the terms of the contract, and statutory liens upon the construction of the statutes.' A court of equity will relieve as against a lien at law, if, from difficulties, the parties are unable to obtain justice at law.' 1 Le'-en. F. h'en, band, bond, tie; L. ligare,to bind. ' Stephani v. Bishop of Chicago, 2 Bradw. 253 (1878), Pleasants, J. ' Stansbury v. Patent Cloth Manufacturing Co., 5

The right of a possessor or bailee to hold the property of another until some demand is satisfied; a special or particular lien, if the demand arise from the property itself, as by labor or service upon it, and the lien is thus confined to that property; a general lien, if the demand is general and indefinite, as for a balance of accounts. In equity, a vendor has a vendor's lien for the unpaid purchase money; a vendee has a lien for purchase money paid before the conveyance is complete. A mechanic's lien, on land and houses for labor done upon them. Maritime liens: for wages, damages by collision, goods supplied a ship, etc. Equitable, mechanics', and maritime liens exist independently of possession.

contracts.

In its most extensive signification, this term includes every case in which real or personal property is charged with the payment of any debt or duty; every such charge being denominated a lien on the property. Ina more limited sense it is defined to be 2 East, 235; 6 East, 25; 2 Campb. 579; 2 Merr. 404; 2 Rose, 35/. The right of lien generally arises by operation of: law, but in some cases it is created by express contract. There are two kinds of lien; namely, particular and general. When a person claims a right to retain property in respect of money or labour expended on such particular property, this is a parttcular lsen. Liens may arise in three ways: Ist, by express contract; 2dly, from implied contract, as from general or particular usage of trade; 3dly, by legal relation between the parties, which may be created in two ways; 1, when the law casts an obligation on a party to do a particular act, and in return for which, to secure him payment, it gives him such lien, 1 Esp. R. 109; 6 East, 519; 2 Ld. Raym. 866; common carriers and innkeepers are among this number. General liens arise in three ways, 1, by the agreement of the parties, 6 T. R. 14; 3 Bos. & Pull. 42; 2, by the general usage of trade; 3, by particular usage of trade, Whitaker on Liens, 35; Prec. Ch. 580; 1 Atk. 235; 6 T. R. 19. Vide, generally, Yelv.67,a; 2 Kent, Com. 495; Pal. Ag. 107; Whit. on Liens.