Lien (law)

“ For enforcing the lien the act provided a summary action at law and an exection against the premises, with a provision, in the eleventh section, that the defendant might file a written undertaking, with surety to be approved by the court, to the effect that he would pay the judgment that might be recovered, and costs, and thereby release the property from the lien. ”

“ Sir W. GRANT, distinctly admitting that the security of a third person would repel the lien. In Elliot v. Edwards. 3 Bos. & Pul. 181, which was a case at law, the point was not decided; and it depended upon its own peculiar circumstances; the surety himself might seem to have stipulated for the lien, by requiring a covenant against the assignment of the premises, without the joint consent of himself and the vendor. ”

“ Again, in many cases, when a party asserts a maritime lien by way of contract, he has improved the condition of the thing upon which the lien is claimed, and this has been recognized as a ground for such a lien in some systems. ”

“ A vendor or seller of property, may have for the money he is to receive a lien, which is nearly the same thing as a mortgage. A subsequent purchaser would be affected by this lien, however innocent he might be of its existence. But if the purchaser should mortgage the property to a third person, who should put his deed on record, he would gain a valid lien over the vendor. This lien is founded on the idea that the vendor holds the land in trust for the purchaser until he has paid for it, but is not recognized in every state. ”

“ A large portion of the modern codes is but declatory of the common law as expounded by the courts. We prefer this interpretation to the one that gives a lien against the stipulations of the parties, and where both were free to enter into them as authorized by a previous clause of the same section. Under this liberty, given to the City Council and the company, the former rejected the lien upon the road by mortgage, preferring the personal security by a pledge or hypothecation of the stock. ”

“ It follows, therefore, that in a large class of executory contracts express and implied, which the common law regards as creating no property, right nor interest analogous to property, but only a mere personal right to obligation, equity recognizes in addition to the personal obligation a particular right over the thing with which the contract deals, which it calls a lien, and which though not property is analogous to property, and by means of which the plaintiff is enabled to follow the identical thing and to enforce the defendant’s obligation by a remedy which operates directly on the thing. ”

“ Liens, being in derogation of common law, are to be construed strictly, and enforced literally. With respect to them, form is substance. The 12th section of the act of 1785, 2 Dall. 251, requires, that in order to constitute a lien, there must be: 1. debt; 2. settlement; 3. by the proper officers; 4. in the prescribed manner; 5. with notice to the debtor; 6. the whole of whose accounts must be settled; 7. and the balance struck in current money; 8. that balance reported to the executive ”

“ Having thus shown that an attachment on mesne process creates a charge on the property attached in favor of the plaintiff, which is, in the language of the statutes and courts of New Hampshire, called a security and a lien, it will be unnecessary to notice arguments which have been urged against them on the ground of their peculiarities or distinctive features. The mere accidents of the subject cannot alter its essence. It is a statute lien, and therefore as much protected by the general language of the proviso as a common law lien. ”

“ A maritime lien, unlike a lien at common law, may, in many cases, exist without possession of the thing, upon which it is asserted, either actual or constructive. It confers, however, upon its holder such a right in the thing that he may subject it to condemnation and sale to satisfy his claim or damages ”

“ Elsewhere he can impose his own terms, and may demand his pay in advance, or create, by contract, a lien if he pleases. A person who is hired as a groom to a horse for a specified time and at a fixed price, has no lien on the horse for his service, but has a lien for feed, keeping and shoeing, which should have been furnished by the owner. ”

“ That lien could not be defeated by the corporations which owned the property purchasing the claims that were filed by creditors under the decree. The lien of the solicitor rests, by the law of that state, upon the basis that he is to be regarded as an assignee of the judgment or decree, to the extent of his fees, from the date of its rendition. This right of the solicitors is superior to any which the defendant corporations acquired subsequent to the decree by the purchase of the claims of unsecured creditors. ”

“ This statute was amended in 1928 by adding that the lien would not be valid until notice was filed 'in accordance with the law of the State or Territory in which the property subject to the lien is situated, whenever the State or Territory has by law provided for the filing of such notice * * *.' [6] (Emphasis supplied.) ”

“ None of those provisions, however, authorize this Court to adopt rules making judgments or decrees for the payment of money a lien on land where no such charge is created by law, or to displace any such right where the same is conferred or recognized by an Act of Congress. ”

“ It may be described as a lien by the Law Merchant, decided by equity to be part of the common law, but in its nature partaking rather of the character of an equitable lien than one at common law. “It is a right which arises solely upon the insolvency of the buyer, and is based on the plain reason of justice and equity that one man’s goods shall not be applied to the payment of another man’s debts. ”

“ Whereupon the complainants appealed to this court, and still insist that their claim is a lien upon the judgment recovered by the respondent against the United States in the Court of Claims.
Liens existed at common law, and they usually arise by statute or by contract, or by the usages of trade or commerce. [1] Such a contract, if alleged, must be proved, and when proved the rights of the parties depend upon the terms of the contract. ”

“ It must act upon the land of the defendant, and consequently the land must lie within the jurisdiction of the court.
What is a judgment lien? In the argument, it was compared to a mortgage. 'A mortgage is often called a lien for a debt, but it is something more. It is a transfer of the property itself as security for the debt. This is true in law and in equity.' Conard v. The Atlantic Insurance Company, 1 Peters, 441. A judgment lien on land constitutes no property or right in the land itself. ”

“ Tobin, (3 Barn. and Ad., 523,) in which he says, 'a consignee who is the absolute owner of the goods is liable to pay general average, because the law throws upon him that liability; but a mere consigned, who is not the owner, is not liable.' And this demonstrates that the lien for average is not a maritime lien. A maritime lien does not include or require possession. The claim or privilege travels with the thing, into whosesoever possession it may come. ”

“ Usually a maritime lien is the proper foundation of a proceeding in rem, as such process is seldom or never appropriate for any purpose except to enforce the inchoate interest created by such a lien, and the law appears to be well settled that where a proceeding in rem is the proper pleading there a maritime lien exists in the thing which it is the office of such a process or pleading to perfect. ”

“ Each several system of law requires to be studied on the point; but, speaking generally, apart from the possessory lien of workmen and the maritime lien of the vice-admiralty courts, it may be assumed that the rules of the civil law, giving a privilege or priority in certain specified cases rather than a lien as understood in English law, prevail in those colonies where the English law is not in force. ”

“ He should be considered as contemplating and consenting that what is uniformly done may be done effectually; and he should not be allowed to say that he did not expect, or agree, that third persons, who have shipped merchandise and taken bills of lading therefor, would thereby acquire a lien on a vessel which he has placed under the control of another, for the very purpose of enabling him to make such contract to which the law attaches a lien. ”

“ Judgments by the common law were not liens upon real estate. The lien arose from the power to issue a writ of elegit. That power was given by the statute of Westminster. C. 18, 13 Ed. I. The right to extend the land fixed the lien upon it. ”

“ Liens for torts take precedence over all prior liens, and the later lien for tort will be preferred to an earlier if there has been an absence of diligence in enforcing it. The John G. Stevens, 170 U. S. 113, is the leading case on the priority of liens against the offending vessel for torts committed by her. Mr. Justice Gray held:
But the question we have to deal with is whether the lien for damages by the collision is to be preferred to the lien for supplies furnished before the collision. ”

“ Cases may arise, undoubtedly, where the rights and responsibilites of the parties are so completely defined by the contract, that neither party is at liberty to claim any thing beyond the terms of the contract, if the contract is in all respects fulfilled. Consequently, lien laws do not in general create a lien in favor of a material-man who has accepted in full a different security at the time the contract or agreement was made. ”

“ VENDOR'S LIEN. In the law of real property, an iniplieJ lien of a vendor of land for the unpaid purchase price, or any balance thereof. It is of equitable origin, and is available against subsequent purchasers and incumljrances with notice. The most effective way of giving notice to the public is to begin an action in equity to enforce the lien, and at the same time file a Us pendens against the property. It does not actually become a specific lien against the property until its existence and validity is established by the decree of a court. ”

“ Lien for Freight and Charter Hire.—
It is fundamental that the goods carried are liable for the carrying charges, but the questions arise: In whose favor does the liability exist, and during what period does it exist? The lien for freight exists in favor of the person with whom the shipper contracts to carry the goods. Where the shipowner is operating the vessel on his own account as a carrier, the lien for freight exists in his favor. Where the vessel is chartered the contract of carriage is between the shipper and the charterer, and the lien for freight exists in favor of the charterer. ”

“ With regard to the question whether a common carrier has a lien as against the true owner on goods which he has transported at the request of a thief, the author states the law as settled, that he has no such lien. ”

“ Greenleaf had issued an attachment, to the use of the assignees, against this property of Morris and Nicholson, a day prior to that of Campbell. Subsequent to that of Campbell, Morris and Nicholson asassign all their interest in this property to these assignees. Greenleaf's attachment was never prosecuted to judgment.
It is contended that this union between the prior lien and the interest attached, defeats the immediate lien.
But we cannot admit this conclusion.
Levying an attachment has the double effect of creating a lien and instituting an action. But the lien is only inchoate ”

“ But such a belief is not sufficient in itself to give a maritime lien. If that belief was founded upon the supposition that the steamship company owned the vessel, no lien would exist, because in the absence of an agreement, express or implied, for a lien, a contract for supplies made directly with the owner in person is to be taken as made "on his ordinary responsibility, without a view to the vessel as the fund from which compensation is to be derived." ”

“ A maritime lien, being essentially a remedy against the vessel, may attach even in a case in which the owners are not personally responsible; as for instance, where a state pilot, in charge of a ship under a state statute which renders his employment compulsory, negligently brought the ship into collision, she was subjected to a lien for the damage done, although the pilot was in no sense the agent of the owners, and no personal liability rested upon them. ”

“ Statute of Frauds — Performance within a Year. — A contract to furnish material until notified to stop is not within the Statute of Frauds. Walker v. R. Co., 1 S.-East. Rep. (S. C.) 366. To the same effect is Bullock v. Turnpike Co., 3 S.-W. Rep. (Ky.) 129.
Subrogation. — A judgment lien is extinguished at law upon payment of the judgment by a surety; yet in equity the lien continues in full force for the benefit of the surety. ”

“ Paragraph (27) defines "judicial lien." It is one of three kinds of liens defined in this section. A judicial lien is a lien obtained by judgment, levy, sequestration, or other legal or equitable process or proceeding. Paragraph (28) defines "lien." The definition is new and is very broad. A lien is defined as a charge against or interest in property to secure payment of a debt or performance of an obligation. It includes inchoate liens. In general, the concept of lien is divided into three kinds of liens: judicial liens, security interests, and statutory liens. ”