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,
More... 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 Civil Proc. Cal. f 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 60&, Fed. Cas. No. 4,043, And see Trust v.-Pirsson, 1 Hilt. (N. Y.) 296; In re Byrne (D. C.) 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. A L. Ass'n v. Robertson, 65 Ala. 382; The J. Bl Rumbell, 148 U. S. 1, 13 Sup. Ct. 496, 37 L. 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 privilege" 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 claim 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 6a. 15, 24 S. Ew 814, 33 L. R. A. 806, 54 Am. St Rep. 379; Civ. Code Cal. 1903, f 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.
Othor 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 re-
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uires no equitable proceeding for its estab-shment. 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. E. 447; Jennings v. Bacon, 84 Iowa, 403, 51 N. W. 15; Ackerman v. Ackerman, 14 Abb. Prac. (N. Y.) 229 ; Mosley v. Norman, 74 Ala. 422; Wright v. Wrijrht, 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. C.) 20 Fed. 132.--^qni-table'liens are such as exist in equity, and of which courts of equity alone take cognisance. 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. Equitable liens most commonly grow out of constructive trusts. Story, Eq. Jur. fi 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 Co. v. Ferris Sugar Mfg. Co. (C. C.) 78 Fed. 421; The Menominie (D. C.) 36 Fed. 199; Fallon v. Worthington. 13 Colo. 559, 22 Pac. 960, 6 L. R. A. 708, 16 Am. St. Rep. 231; In re Lesser (D. C.) 100 Fed. 436.-First lien. One which takes priority or precedence over all other charges or incumbrances upon the same piece of property, and which must be satisfied before such other charges are entitled to participate in tbe 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 or 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 all 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. 602, 52 N. Y. Supp. 203.-Secret Uen. 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' " Hens, see those titles.
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