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Ann. Cas. 1913B, 517 (quoting and citing a definition in Anderson v. State, 23 Miss. 459). A "lien" is a right by which a person is entitled to obtain satisfaction of a debt by means of property belonging to the person indebted to him. Frick v. Hilliard, 95 N. C. 117, 122.

In the strict legal sense, a "lien" is a right in one person to detain that which is in his possession belonging to another until certain demands of such person in possession are satisfied. In re Ransford, 194 Fed. 658, 660, 115 C. C. A. 560.

debt or duty is due. A 'lien' is defined to be a hold or claim as security for some debt or charge. At common law there could be no lien without possession. It is therein defined as a right in one man to retain that which is in possession and belonging to another. In maritime law, liens exist independently of possession, either actual or constructive; and in the courts of equity the term 'lien' is used as syonymous with a charge or incumbrance upon the thing, where there is nei ther jus in re nor ad rem, nor possession of the thing." Irrespective of whether the lien upon the funds impounded by the service of A "lien" is a holding or claim which one the summons of garnishment attaches before person has on the property of another as se- final judgment or not, the service of the sumcurity for a judgment or some charge or mons of garnishment so far places the funds debt out of that property. United States Ox- found in the hands of the garnishee (espeygen Co. v. Bernard A. Buge, 136 N. Y. Supp. cially when the money is paid into court, or 297, 301 (citing 5 Words and Phrases, p. in lieu thereof a dissolving bond given) into 4144); Meanor v. Goldsmith, 65 Atl. 1084, the custody and control of the court admin1086, 216 Pa. 489, 10 L. R. A. (N. S.) 342 istering the case that it will be entitled to (quoting definition in 2 Bouv. Law Dict. 226). hold and subject the fund, despite the subA "lien" is the right of the creditor to sequent bankruptcy of the defendant, if the take his debt out of a specified res, which, petition in bankruptcy be filed more than though it may be a changing fund, must nevfour months after such custody is obtained. ertheless be ascertained, since it is a prop-National Surety Co. of New York v. Mederty right, and could not be said to arise by lock, 58 S. E. 1131, 2 Ga. App. 665 (quoting a mere custom restricting a borrower's right 5 Words and Phrases, p. 4144). to use the money loaned to release certain securities from a former pledge, nor by a promise to pay the creditor from a particular fund. Hotchkiss v. National City Bank of New York, 200 Fed. 287, 291.

The term "lien," in a narrow technical sense, signifies a right by which a person in possession of personal property holds and detains it against the owner in satisfaction of a demand. The term, however, has a more extensive meaning, being used to de

note a legal claim or charge on property, real

or personal, for the payment of a debt or duty; every such claim or charge being still a "lien," though the property be not in the possession of him to whom the debt or duty is due. It is a hold or claim which one has on the property of another as security for some debt or charge and may exist independent of possession. As in maritime law and in equity, the term is used as synonymous with a charge or incumbrance on the thing where there is neither jus in re nor ad rem, nor possession of the thing. In re Maher, 169 Fed. 997, 999 (citing 5 Words and Phrases, p. 4144 et seq.).

"The term 'lien,' in a narrow and more technical sense, 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 property, either real or personal, for the payment of any debt or duty. Every such claim or charge is still a lien on the property, although the property be not in the possession of him to whom the 3 WDS.& P.2D SEB.-9

The "lien" given persons who have furnished material for the construction of a vessel has been defined as "a tie hold or security," or "a sort of proprietary interest springing from the nature of the transaction and beneficial service rendered to the ship," or as a "hold upon property specifically attaching thereto for the satisfaction of some claim." Wight v. Maxwell, 4 Mich. 45, 55.

A bank holding notes of a depositor

which are due has the right to charge the

same to the depositor's account. Such right

is not strictly a lien, within the meaning of but it can be exercised only as to notes which the bankruptcy law, but a right of set-off; are due. Irish v. Citizens' Trust Co. of Uti

ca, N. Y., 163 Fed. 880, 891.

The word "lien" is inaptly applied to a general deposit which is the property of the bank itself, but can be properly applied to special specific deposits of chattels, choses in action, valuables, etc. Wynn v. Tallapoosa County Bank, 53 South. 228, 236, 168 Ala. 469.

A right to a "lien" does not include the right to every onerous burden which may be thought to be advantageous to the favored creditors. The burden sought to be enforced must be something that can reasonably be considered as naturally a part of the thing granted-the lien. But a lien on real property is a thing entirely different and distinct from a personal obligation in the form of a bond. The latter is not included in the former, and is, indeed, a totally different kind of security. Shaughnessy v. American Surety Co., 71 Pac. 701, 138 Cal. 543.

Under Civil Damage Act (Code 1906, c. | ment of real estate, special liens thereon, and 32) § 26, providing that if a landlord's prop- when work done or material furnished for erty be "seized or taken" for any fine, etc., the improvement of real estate is done or by reason of his tenant's unlawful acts, such may be furnished upon the employment of landlord may recover damages and costs, a a contractor, or other persons than the own"lien" upon a landlord's property, being de- er, the lien shall attach to the real estate fined as a hold or claim which one has upon improved, for the amount of work done, or the property of another as a security for material furnished, unless the owner shows some debt or charge, does not constitute a that such lien has been waived in writing, "seizure or taking" of his property within or produces the sworn statement of the conthe meaning of the statute. Brown v. United tractor, or other person, at whose instance States Fidelity & Guaranty Co., 74 S. E. 868, the work was done, or material was furnish869, 70 W. Va. 613. ed, that the agreed price or reasonable value thereof has been paid, the word "liens" is to be construed to mean, not the perfected and recorded liens, but the inchoate or imperfect liens, or claims arising by the mere furnish§§ing of material or the performance of labor. Green v. Farrar Lumber Co., 46 S. E. 62, 63, 119 Ga. 30.

The right of creditors of a mortgagor, dying without sufficient personal estate to pay his debts, to sell the real property for that purpose within three years after administration, as authorized by Code Civ. Proc. 2749, 2750, is a mere statutory power, and not a "lien" on the lands, which would make them necessary parties to a foreclosure action. Heidgerd v. Reis, 119 N. Y. Supp. 921, 923, 135 App. Div. 414.

A contract with a subagent to solicit insurance for commissions, stipulating that the general agent will advance him $25 per week, and providing that all money collected by the subagent for premiums on policies must be turned over to the general agent, and that the subagent will repay the general agent all sums advanced, said advances to constitute a lien against all commissions, absolutely binds the subagent to repay all advances; the word "lien" meaning a claim which one has on the property of another as a security for a debt, contemplating that the advances constitute a debt. Straus v. Rosenthal, 121 N. Y. Supp. 267, 269.

er.

Pub. St. 1901, c. 245, § 28, provides that, if a trustee is adjudged chargeable for any personal property subject to mortgage, pledge, or other lien, the court may appoint a receiv. Section 29 provides that, if a trustee is adjudged chargeable for any security for payment of money, or any chose in action upon which execution cannot be levied, the court may appoint a receiver. Section 30 provides that the trustee may be adjudged trustee for the value of any note, chose in action, etc., which he refuses to deliver to the receiver. The trustee held a check payable to himself and defendant, who transferred his interest to claimant, after service of the writ with claimant's knowledge. Held, that the check was a chose in action, the possession of which was a "lien" within the statute, though defendant did not indorse the check to him for collection, so that the trustee was chargeable therefor, and a receiver was properly appointed to collect it. Musgrove v. Goss, 72 Atl. 371, 373, 75 N. H. 208. Under Civ. Code 1895, § 2801, subd. 2. as amended by the act of 1899 (Acts 1899, p. 33; Van Epps' Code Supp. § 6176), giving to mechanics, contractors, materialmen, and persons furnishing material for the improve

Lien Law (Consol. Laws 1909, c. 33) § 17, providing that, if a lienor is made defendant to a suit to enforce another lien, and plaintiff or such defendant has filed notice of pendency of the suit, the lien of such defendant is continued, does not extend to municipal "liens." William Bradley & Son V. Henry Huber Co., 131 N. Y. Supp. 388, 390, 146 App. Div. 630.

The word "lien," in Comp. Laws, § 5031, giving a "lien" to warehousemen which shall extend to all legal demands for storage against the owner of the property, means a general "lien," and, where goods removed without payment of charges are subsequently stored, the warehouseman may retain them for payment of the first charges. Kaufman v. Leonard, 102 N. W. 632, 139 Mich. 104.

The "lien" given under Wilson's Rev. & Ann. St. 1903, c. 3, §§ 108, 110, providing that any person employed in feeding or herding any domestic animals shall, for the amount due for such feeding or herding, have a "lien" on the animals, is similar to a lien under a chattel mortgage. It may be foreclosed, and the property sold to satisfy it. Crismon v. Barse Live Stock Commission Co., 87 Pac. 876, 877, 17 Okl. 117.

Where a deed provides that the grantee shall assume and pay existing mortgages, "liens," taxes, and claims of any and every description, the assumption clause making use of the general word "liens" includes not only mechanics' liens but all kinds of “liens.” Gage v. Cameron, 72 N. E. 204, 209, 212 Ill. 146.

Assessment or tax

A lien is a hold or claim which one persecurity for some debt or charge. In the nason has upon the property of another as a ture of things, no tax or assessment can exist, so as to become a lien or incumbrance upon real estate, until the amount thereof is ascertained and determined. Gillmor v. Dale, 75 Pac. 932, 934, 27 Utah, 372.

311.

Where the owners of a tenement house a claim against the vendors was not a valid on November 1, 1906, contracted to convey "lien" against the property, unless it appearthe same free from all incumbrances and vio-ed of record. Brown v. Gordon-Tiger Mining lations of the tenement house act (Laws 1901, & Reduction Co., 97 Pac. 1042, 1045, 44 Colo. p. 889, c. 334), and on May 25th had been served with notice to install a water meter, which was installed by the water department on October 8th, but the cost was not certified until November 1st, nor the bill certified to the comptroller until December 13, 1906, the assessment therefor was not a lien on the premises, when conveyed on December 11th, the words "lien or incumbrance" being used to cover only a charge against the property after it has been ascertained or determined. Feder v. Rosenthal, 116 N. Y. Supp. 2, 4, 62 Misc. Rep. 610.

Defendant vendors covenanted to pay any assessment of a kind mentioned therein

for the payment of which any lien existed July, 1899, on the lot conveyed; there being then no power to lay any such assessments, and the land not being subject to any existing lien for such assessments. A valid assessment was thereafter laid under St. 1902, C. 527. Held, that the word "lien," in defendants' covenant, referred to the lien of an existing incumbrance, and was not to be extended to include the possibility of a future incumbrance being created by subsequent legislation, and hence that the defendants were not bound to pay such subsequent assessment. Campbell v. Haven, 97 N. E. 611, 612, 211 Mass. 121.

Tax liens held by the state of Minnesota are within the terms of Laws 1905, p. 459, c. 305, § 13, providing that it shall be joined as a party defendant whenever it has an interest in or "lien upon the land" in suit. In re National Bond & Security Co., 104 N. W. 678, 679, 96 Minn. 119.

Assignment

The right created by the assignment, as security, of one's expectancy in the estate of his living ancestor, being a present equitable charge, which, when the descent is cast, at once ripens into a "lien" on the property, is within Bankr. Act July 1, 1898, c. 541, § 67, 30 Stat. 564, exempting from its operation and preserving all liens created by the bankrupt, and therefore enforceable against the bankrupt after his discharge, especially where the property did not come into the possession of the assignee in bankruptcy, because not then acquired by the bankrupt. Bridge v. Kedon, 126 Pac. 149, 152, 163 Cal. 493, 43 L. R. A. (N. S.) 404.

As claim or demand

A personal claim against a bankrupt's estate does not constitute a "lien." Eason v. Garrison & Kelly, 82 S. W. 800, 801, 36 Tex. Civ. App. 574.

Where a contract for the sale of land containing a mine limited the application of $60,000 of the price to the payment of "liens,"

Under a provision, in a certificate of preferred stock in a corporation, that no mortgage or "lien of any nature" should be placed upon the property of the company without the unanimous consent of the preferred stockholders, the words "lien of any nature" did not include the claims of general creditors, since a "lien" is something distinct from a claim and in the nature of a security. Fryer v. Wiedemann, 146 S. W. 752, 755, 148 Ky. 379, 39 L. R. A. (N. S.) 1011.

As contractual lien

Under Civ. Code Prac. § 62, subd. 3, re

quiring an action for the sale of real properbrance or charge, etc., to be brought in the ty under a mortgage lien, or other incumcounty in which the subject of the action, or some part thereof, is situated, the words not embrace an attachment lien, but refer to "lien, or other incumbrance or charge," do liens or charges created by contract or judgment. Hatton v. Rogers, 121 S. W. 698, 699, 134 Ky. 840.

Dower

Dower is not a "lien" of any kind, but an estate. The fact that it is an incumbrance does not constitute it a lien. An incumbrance is not always a lien, though a lien is always an incumbrance. Wilson v. Wilson, 105 N. Y. Supp. 151, 153, 120 App. Div. 581.

Equitable lien

The term "lien" is used in equity in a broader sense than at law, and denotes any right of a special nature over a thing, which constitutes a charge or incumbrance upon it, and may be enforced by proceeding against it, and to the existence of such a lien possession is not essential. An equitable lien is distinct from the general title, and may exist separate from it, or both may be vested in the same person. In re National Cash Register Co., 174 Fed. 579, 581, 98 C. C. A. 425.

A "lien," from a legal standpoint, embodies the idea of a deed or bond, and necessarily implies that there is something in existence to which it attaches. In equity there may be an agreement that there shall be a lien upon a thing if and when it exists, but that agreement is not itself a "lien." On an equitable assignment of money to be earned in the future by the assignor, the assignee acquires no "lien" on the money unless the assignor has earned it. Cogan v. Conover Mfg. Co., 60 Atl. 408, 414, 69 N. J. Eq. 358.

As estate

See Estate.

As interest in land

See Interest (In Property).

Interest of plaintiff in garnishment

Service of a writ of garnishment gives plaintiff, at least before judgment against the garnishee, a specific right to have his claim satisfied out of the funds in the garnishee's hands, which is a "lien," within Bankr. Act July 1, 1898, c. 541, § 67, subd. "f," 30 Stat. 564, 565, making void all attachments or other liens obtained through legal proceedings against the insolvent within four months after filing the petition in bankruptcy; the statute applying to voluntary as well as involuntary proceedings, in view of section 1, subd. 1, providing that the term "a person against whom a petition has been filed" shall include one filing a voluntary petition. Longley Bros. v. McCann, 119 S. W. 268, 269, 90 Ark. 252.

Judgment or attachment

Mortgage or trust deed

A mortgage is a "lien," and a pledge is a lien, so that under Rev. Codes 1909, § 4303, subd. 1, providing that the clerk of the court must issue a writ of attachment upon receiving an affidavit by or on behalf of the plaintiff, setting forth inter alia that the payment of the debt sought to be collected has not been secured by any mortgage or lien upon real or personal property, or any pledge of personal property, etc., an affidavit partially following the language of the statute in regard to the debt not being secured. and fails to state that it is not secured by pledge of personal property, and contains no statement equivalent to that, is not sufficient as it does not contain the language of the statute or language equivalent to that required by the statute. Knutsen v. Phillips, 101 Pac. 596, 598, 16 Idaho, 267.

A deed of trust on a homestead is not a "lien," within Code Civ. Proc. § 1475, requiring the presentation of the claim against the estate as a condition precedent to enforcing a lien or incumbrance on the homestead, so that a trust deed executed by a husband and

An attachment on mesne process under the statute creates a lien. This lien does not depend upon possession. It is created by process of law, sometimes by a record of the doings of an officer, as in the case of attachments of real estate and of personal property that cannot easily be removed. Undoubted-wife on the homestead was enforceable withly an attachment by trustee process gives a lien on property which will be good against bankruptcy, if more than four months old. Snyder v. Smith, 69 N. E. 1089, 1090, 185 Mass. 58.

out presenting a claim to the husband's administrator for the debt secured thereby. Athearn v. Ryan, 98 Pac. 390, 391, 154 Cal. 554.

"A 'lien' is a charge imposed in some mode other than by a transfer in trust upon specific property by which it is made security for the performance of an act." Civ. Code, § 2872. Hence a deed of trust is not a lien, within Code Civ. Proc. § 1475, declaring that, if there are subsisting liens on the homestead of a decedent, the claims secured thereby must be presented and allowed as other Weber v. Mcclaims against the estate. Cleverty, 86 Pac. 706, 708, 149 Cal. 316.

A "lien," in its usual and ordinary signification, is a claim which one person has on the property of another as security for some debt or charge for the payment or satisfaction of which the property may be sold, and Comp. Laws Dak. 1887, § 4339, giving one who has a lien the right to redeem from a superior lien on the same property, does not give an attaching creditor, whose claim has not been reduced to judgment, the right to redeem from a purchaser of the attached property at an auction sale before the passing of the sheriff's deed, which, under other statutory provisions, is not issued until the expiration of a year after the sale; the interest of such purchaser not being a lien in clares that a lien is a charge imposed in some mode other than by a transfer in trust on a legal sense, but rather an inchoate owner-specific property, by which it is made securiship which may automatically ripen into a legal title without any further act on his part. Hardin v. Kelley, 144 Fed. 353, 354, 75 C. C. A. 355.

Same-Power of sale

Civ. Code, §§ 858, 2932, provide that a power of sale in a mortgage shall be deemed a part of the security, and section 2872 de

ty for the performance of a particular act. Held, that a power of sale contained in a mortgage is a "lien," and can no longer be

exercised after an action on the debt is barred. Goldwater v. Hibernia Savings & Loan Society, 126 Pac. 861, 862, 19 Cal. App. 511. Possession required

A judgment is a purely legal "lien" on land, and in an action in a court other than that in which the judgment was rendered, and in which the issue was as to whether The word "lien," at common law, signione of the parties who had paid the judg-fies that a person who has bestowed labor upment was entitled to subrogation, the land on which the judgment was a lien could not be made the subject of a direct order or decree, the proper mode of control being by directions as to the legal ownership or control of the judgment. Boice v. Conover, 61 Atl. 159, 163, 69 N. J. Eq. 580.

on an article of personal property shall be authorized to retain possession until his reasonable charges are paid; it must be so understood, as used in Rev. St. 1889, § 2843, giving a lien for cutting wood, so that there is no enforceable lien after the property has lawfully passed out of the debtor's posses

ddon to a third person. Turner v. Horton, | Sumpter v. Burnham, 99 Pac. 752, 753, 51 106 Pac. 688, 691, 18 Wyo. 281. Wash. 599.

As right of priority

"A 'lien' is a priority. It is that, and something more. That something more is that it is a hold on the property covered by it that fixes the priority so that it cannot be affected by subsequent events." In re Bennett, 153 Fed. 673, 690, 82 C. C. A. 531.

"A 'lien' is a right of one to retain property in his possession belonging to another until certain demands of him in possession are satisfied." A right to prior payment is not in itself a "lien." Weisel v. Old Dominion S. S. Co., 91 N. Y. Supp. 140, 141, 99 App. Div. 568 (quoting and adopting definition in Jordan v. National Shoe & Leather Bank, 74 N. Y. 467, 30 Am. Rep. 319).

It

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The owner of property, exempt from taxation under its charter (Pub. & Loc. Laws 1869, c. 149), executed a mortgage to secure a loan, and executed its bonds to secure the mortgage, and agreed that it would pay all taxes and assessments imposed on the mortgaged property, all taxes assessed or imposed on the mortgage, and all taxes assessed against the lien or interest created by the mortgage. St. 1898, § 1042d, added by Laws 1903, c. 378, § 2, provided that, whenever taxable real estate is subject to mortgage, the mortgage, for the purposes of taxation, should be an interest in the real estate taxable as such where the real estate was located or

might be separately assessed and taxed. Held, in the mortgagee's action to foreclose because of the mortgagor's refusal to pay taxes against the bonds in the hands of purchasers from the mortgagee, that the first obligation referred only to general taxes or special assessments levied on the property; that the third obligation referred to an assessment against some interest in the mortgaged real estate, not including an assess

The creditors of a firm have the privilege, sometimes loosely denominated a "lien," to have debts due to them paid out of the assets of the firm in course of liquidation, to the exclusion of creditors of its several members. This equity is a derivative one. is practically a subrogation to equity of the individual partner to have partnership property applied to the payment of partnership debts in preference to those of any individual partner. People's Nat. Bank of Jacksonment on the bonds; that the words "mortv. Wilcox, 100 N. W. 24, 29, 136 Mich. 567, 4 Ann. Cas. 465 (quoting Case v. Beauregard,

99 U. S. 119, 25 L. Ed. 370).

As security

See Security.

As specific lien

gage" and "lien or interest created thereby" were synonymous; that the obligation to pay taxes on the "mortgage" did not comprehend such taxes assessed on the bonds, and that the mortgagor was not liable therefor. Citizens' Savings & Trust Co. v. School Sisters of Notre Dame, 139 N. W. 439, 441, 151 Wis. 619.

LIENABLE ARTICLE

Civ. Code, § 2872, declares that a "lien" is a charge imposed upon specific property by which it is made security for the performance of some act, and, if the contract with a water company provides that the agree-deliers, ment to furnish water shall bind its canal, there would be created thereby a lien on the canal for the performance of the act of furnishing the water as agreed. Stanislaus Water Co. v. Bachman, 93 Pac. 858, 863, 152 Cal. 716, 15 L. R. A. (N. S.) 359 (citing Fresno Canal & Irr. Co. v. Rowell, 22 Pac. 53, 80 Cal. 114, 3 Am. St. Rep. 112; Same v. Dunbar, 22 Pac. 275, 80 Cal. 530).

LIEN CLAIMANT

Act March 13, 1899, § 1 (Laws 1899, p. 143, c. 90), provides that costs shall not be allowed in a suit to foreclose a logger's lien unless a demand for payment of the lien has been made before suit, unless the court finds that the claimant had reasonable grounds to believe that the owner or a person having control of the property on which the lien was claimed was attempting to defraud the claimant. Held, that the terms "lienholder" and "lien claimant" included a person having a lienable claim, though not perfected, and hence a demand before the filing of the lien notice was a sufficient compliance therewith.

Gas appliances, such as pendants, chanbrackets, and globes, are not fixtures nor "lienable articles," within the statute giving liens for material furnished and labor done on buildings, in the absence of evidence of an intention on the part of the owner when he has them put in to make them permanent parts of the building, and such intention is not shown by the mere fact that they are put in by the original owner of the building, and remain in the same after it is sold by him to another. Frank Adam Electric Co. v. Gottlieb, 86 S. W. 901, 903, 112 Mo. App. 226.

LIENABLE CLAIM

The term "lienable claim" suggests mere right to obtain an interest in specified property, instead of an interest in præsenti therein. Jackman v. Eau Claire Nat. Bank, 104 N. W. 98, 106, 125 Wis. 465, 115 Am. St. Rep. 955.

LIENHOLDER

As owner, see Owner.

Act March 13, 1899, § 1 (Laws 1899, p. 143, c. 90), provides that costs shall not be allowed in a suit to foreclose a logger's lien

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