Gambar halaman

lien of a state or municipality for taxes, liens given to contractors, material men and laborers upon houses or other structures upon which they have bestowed labor, or for which they have furnished material, liens of judgments, are created by statute. An artisan or mechanic who receives material with which he constructs an article for another, or receives an article to be repaired, has a lien upon the article for his labor. An innkeeper has a lien upon the baggage and personal effects of his guest for his board and lodging. A carrier or a workman has a lien for his charges. An attorney has a lien upon papers or funds of his client in his possession for his services. A banker has a lien on his debtors' funds in the bank. These are examples of common law liens. A creditor of a failing or insolvent debtor has a lien upon his assets ; a seller of land who receives a part of the purchase-money has a lien upon the land for the unpaid balance; a partner who has advanced money to the firm has a lien upon the interests of his copartners. Persons not bound by any obligation to do the service, who perform labor in saving a ship or her cargo, or the lives of persons belonging to her, from danger or loss in cases of shipwreck, derelict, capture or the like, are salvors and have a lien upon the ship and cargo for the value of the services so rendered. These are some examples of equitable liens.

$ 81. Liens by contract are created by the express agreement of the parties, as in case of a loan of money, when at the time the loan is made the borrower either verbally or by written instrument pledges a specific piece of property as security for the repayment of the money. When the property is personal and is placed in the hands of the lender, it is a pledge. When the borrower retains possession, but executes and delivers to the lender an instrument in writing, giving the lender the right to have his debt paid out of the property described in the instrument, it is a mortgage which creates a lien upon such property, which may be enforced by foreclosure, if the debt is not paid at maturity.



$ 82. Its origin and nature. While it is not intended, nor is it necessary here, to give a minute account of the feudal system of England, some acquaintance with its principal features is requisite to an understanding of the subject of estates in land. The germs of a feudal system existed among the Romans, but in its entireness it never subsisted anye where before it arose in the middle ages in those parts of Europe in which the Germanic nations settled themselves after the subversion of the Roman empire. The essential character of the estate denominated “ feud,” or “ fief” was that from the first and always it continued to be not an estate of absolute ownership. The property, the ownership remained in the grantor, the grantee was a mere tenant. Originally, these “fiefs” were resumable at the pleasure of the grantor, which made the tenure precarious and kept the tenant in a state of timorous vassalage. To incur the displeasure of his chief or grantor meant expulsion from his estate. The grantor was known as the suzerain or lord, and the grantee as vassal or tenant. Subsequently, the relation of lord and tenant was ameliorated, first by giving the tenure a fixed duration for a term of years. Later still, the relation and tenure became permanent, the vassal taking an oath of fealty to his lord, in which he bound himself to render fixed services, in return for which he was to have his lands, so long as the service was rendered. The obligation was mutual and an attempt of the lord to dispossess a tenant, who was faithful, was looked upon as an act of injustice. These fiefs were then extended to life tenures. Then they became descendible to the eldest son, and afterwards to the collateral lines, and still later they became inheritable by females. When fiefs first became hereditary is a matter of dispute with historians, but in all the changes in the system the relation of lord and tenant survived, the ultimate property was still in the lord. Even after fiefs became descendible, the new occupant was required to make a new oath of fealty and acknowledge his vassalage, and thus obtain, in form at least, a new grant from his lord, and he was bound to the same service which was the consideration for the first grant. In case of the extinction of the descendible line, or where the fief was lost or forfeited by the crime of the vassal, it escheated to the lord. At first it was only sovereign princes who granted fiefs, but when they became hereditary and fixed, the vassal himself would grant portions of his fief to others, and thus there grew up the practice of subinfeudation.

$ 83. Allodial estates.—Fiefs were not the only sort of land tenures in the ancient Germanic prov. inces. Some lands were allodial, that is they were held by absolute and independent title, and the holder owing no fealty to an over-lord was free from the exactions and burdens to which the holder of a fief was subject. But this freedom from vassalage had its disadvantages. If the holder by such a ten. ure owed no fealty, he did not enjoy the protection of a superior, which was due to a vassal who held a fief. Wars were frequent among the feudal lords, and these allodial proprietors were often the victims of oppression. They were without organization, had no superior, and were at the mercy of their more powerful neighbors. This led to a surrender of their tenures to the lords, to whom they made their oath of fealty and secured protection. This absorption of the allodial lands was general in Italy, France, Germany, and England. William, the Norman, had witnessed in France the evil effects of the divided allegiance of the people. The vassal's first and paramount allegiance was to his lord, and in cases of conflict with his king, the vassal was true to his immediate protector. After the conquest, William imposed new conditions upon those to whom he gave the lands of England. The vassal took a double oath. first to the king and under him to the lord. So that Coke could say, in writing of English tenures, that “All the lands and tenements in England in the hands of subjects are holden mediately or immediately of the king; for in the law of England we have not properly allodiam.”

§ 84. Wardship and marriage.-Some of the incidents of the system, as it existed in some parts of Germany and France and in England, bore with oppressive weight upon the vassals. These were the incidents of wardship and marriage. The lord was guardian of the person and estate of the infant tenant during minority, and the profits accruing therefrom added greatly to the lord's revenues. So, be

« SebelumnyaLanjutkan »