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Interest of plaintiff in garnishment Mortgage or trust deed
A mortgage is a "lien," and a pledge is plaintiff, at least before judgment against a lien, so that under Rev. Codes 1909, $ the garnishee, a specific right to have his 4303, subd. 1, providing that the clerk of claim satisfied out of the funds in the gar- the court must issue a writ of attachment upnishee's hands, which is a "lien," within on receiving an affidavit by or on behalf of Bankr. Act July 1, 1898, c. 541, $ 67, subd. the plaintiff, setting forth inter alia that the “L,” 30 Stat. 564, 565, making void all attach- payment of the debt sought to be collected ments or other liens obtained through legal has not been secured by any mortgage or proceedings against the insolvent within four lien upon real or personal property, or any months after filing the petition in bankrupt- pledge of personal property, etc., an affidavit cy; the statute applying to voluntary as partially following the language of the statwell as involuntary proceedings, in view of ute in regard to the debt not being secured, section 1, subd. 1, providing that the term and fails to state that it is not secured by "a person against whom a petition has been pledge of personal property, and contains no filed” shall include one filing a voluntary pe- statement equivalent to that, is not sufficient tition. Longley Bros. y. McCann, 119 S. W. as it does not contain the language of the 268, 269, 90 Ark. 252.
statute or language equivalent to that re
quired by the statute. Knutsen v. Phillips, Judgment or attachment
101 Pac. 596, 598, 16 Idaho, 267. An attachment on mesne process under A deed of trust on a homestead is not a the statute creates a lien. This lien does not “lien," within Code Civ. Proc. § 1475, requirdepend upon possession. It is created by ing the presentation of the claim against the process of law, sometimes by a record of the estate as a condition precedent to enforcing doings of an officer, as in the case of attach- a lien or incumbrance on the homestead, so ments of real estate and of personal property that a trust deed executed by a husband and that cannot easily be removed. Undoubted- wife on the homestead was enforceable withly an attachment by trustee process gives a out presenting a claim to the husband's adlien on property which will be good against ministrator for the debt secured thereby. bankruptcy, if more than four months old. Athearn v. Ryan, 98 Pac. 390, 391, 154 Cal. Snyder v. Smith, 69 N. E. 1089, 1090, 185 554. Mass. 58.
"Alien' is a charge imposed in some A “lien," in its usual and ordinary sig- mode other than by a transfer in trust upon nification, is a claim which one person has specific property by which it is made security on the property of another as security for for the performance of an act." Civ. Code, 8 some debt or charge for the payment or sat. 2872. Hence a deed of trust is not a lien, isfaction of which the property may be sold, within Code Civ. Proc. § 1475, declaring that, and Comp. Laws Dak. 1887, § 4339, giving if there are subsisting liens on the homestead one who has a lien the right to redeem from of a decedent, the claims secured thereby a superior lien on the same property, does must be presented and allowed as other not give an attaching creditor, whose claim claims against the estate. Weber v. Mchas not been reduced to judgment, the right Cleverty, 86 Pac. 706, 708, 149 Cal. 316. to redeem from a purchaser of the attached
Same-Power of sale property at an auction sale before the passing of the sheriff's deed, which, under other
Civ. Code, &$ 858, 2932, provide that a statutory provisions, is not issued until the power of sale in a mortgage shall be deemed expiration of a year after the sale; the in
a part of the security, and section 2872 deterest 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 ty for the performance of a particular act legal title without any further act on his Held, that a power of sale contained in a part. Hardin v. Kelley, 144 Fed. 353, 354, mortgage is a "lien," and can no longer be 75 C. C. A. 355.
exercised after an action on the debt is barA judgment is a purely legal "lien" on red. Goldwater v. Hibernia Savings & Loan land, and in an action in a court other than Society, 126 Pac. 861, 862, 19 Cal. App. 511. that in which the judgment was rendered,
Possession required and in which the issue was as to whether one of the parties who had paid the judg. fies that a person who has bestowed labor up
The word "lien," at common law, signiment was entitled to subrogation, the land
on an article of personal property shall be on which the judgment was a lien could not authorized to retain possession until his reabe made the subject of a direct order or de- sonable charges are paid; it must be so uncree, the proper mode of control being by di- derstood, as used in Rev. St. 1889, $ 2843, rections as to the legal ownership or control giving a lien for cutting wood, so that there of the judgment. Boice v. Conover, 61 Atl. is no enforceable lien after the property has 159, 163, 69 N. J. Eq. 580.
lawfully passed out of the debtor's possesson 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
LIEN OR INTEREST CREATED "Alien' is a priority. It is that, and THEREBY something more. That something more is The owner of property, exempt from taxthat it is a hold on the property covered by ation under its charter (Pub. & Loc. Laws it that fixes the priority so that it cannot be 1869, c. 149), executed a mortgage to secure affected by subsequent events.” In re Ben- a loan, and executed its bonds to secure the nett, 153 Fed. 673, 690, 82 C. C. A. 531.
mortgage, and agreed that it would pay all "A ‘lien' is a right of one to retain prop- taxes and assessments imposed on the morterty in his possession belonging to another gaged property, all taxes assessed or imposuntil certain demands of him in possessioned on the mortgage, and all taxes assessed are satisfied.” A right to prior payment is against the lien or interest created by the not in itself a “lien.” Weisel v. Old Domin- mortgage. St. 1898, § 1042d, added by Laws ion S. S. Co., 91 N. Y. Supp. 140, 141, 99 App. 1903, c. 378, § 2, provided that, whenever taxDiv. 568 (quoting and adopting definition in able real estate is subject to mortgage, the Jordan v. National Shoe & Leather Bank, 74 mortgage, for the purposes of taxation, should N. Y. 467, 30 Am. Rep. 319).
be an interest in the real estate taxable as
such where the real estate was located or The creditors of a firm have the privi: might be separately assessed and taxed. lege, sometimes loosely denominated a “lien," Held, in the mortgagee's action to foreclose to have debts due to them paid out of the assets of the firm in course of liquidation, to taxes against the bonds in the hands of pur
because of the mortgagor's refusal to pay the exclusion of creditors of its several mem-chasers from the mortgagee, that the first bers. This equity is a derivative one. It
obligation referred only to general taxes or is practically a subrogation to equity of the
special assessments levied on the property ; individual partner to have partnership prop- that the third obligation referred to an aserty applied to the payment of partnership sessment against some interest in the mortdebts in preference to those of any individual partner. People's Nat. Bank of Jackson gaged real estate, not including an assess
ment on the bonds; that the words “mortV. Wilcox, 100 N. W. 24, 29, 136 Mich. 567, gage" and "lien or interest created thereby” 4 Ann. Cas. 465 (quoting Case v. Beauregard, were synonymous; that the obligation to pay 99 V'. S. 119, 25 L. Ed. 370).
taxes on the "mortgage" did not comprehend As security
such taxes assessed on the bonds, and that See Security.
the mortgagor was not liable therefor. Citi.
zens' Savings & Trust Co. v. School Sisters As specific lien
of Notre Dame, 139 N. W. 439, 441, 151 Wis. Civ. Code, § 2872, declares that a “lien" | 619. is a charge imposed upon specific property by
LIENABLE ARTICLE which it is made security for the performance of some act, and, if the contract with
Gas appliances, such as pendants, chan& water company provides that the agree deliers, brackets, and globes, are not fixtures ment to furnish water shall bind its canal, nor “lienable articles," within the statute there would be created thereby a lien on the giving liens for material furnished and labor canal for the performance of the act of fur- done on buildings, in the absence of evidence nishing the water as agreed. Stanislaus Wa- of an intention on the part of the owner ter Co. F. Bachman, 93 Pac. 858, 863, 152 when he has them put in to make them perCal. 716, 15 L. R. A. (N. S.) 359 (citing Fres- manent parts of the building, and such intenno Canal & Irr. Co. v. Rowell, 22 Pac. 53, 80 tion is not shown by the mere fact that they Cal. 114, 3 Am. St. Rep. 112; Same v. Dun- are put in by the original owner of the buildbar, 22 Pac. 275, 80 Cal. 530).
ing, and remain in the same after it is sold
by him to another. Frank Adam Electric LIEN CLAIMANT
Co. v. Gottlieb, 86 S. W. 901, 903, 112 Mo. Act March 13, 1899, $ 1 (Laws 1899, p.
App. 226. 143, c. 90), provides that costs shall not be LIENABLE CLAIM allowed in a suit to foreclose a logger's lien The term "lienable claim" suggests mere unless a demand for payment of the lien has right to obtain an interest in specified propbeen made before suit, unless the court finds erty, instead of an interest in præsenti therethat the claimant had reasonable grounds to in. Jackman v. Eau Claire Nat. Bank, 104 believe that the owner or a person having N. W. 98, 106, 125 Wis. 465, 115 Am. St. Rep. control of the property on which the lien was 955. claimed was attempting to defraud the claimant. Held, that the terms "lienholder" and
LIENHOLDER "lien claimant" included a person having a
As owner, see Owner. lienable claim, though not perfected, and Act March 13, 1899, § 1 (Laws 1899, p. hence a demand before the filing of the lien 143, c. 90), provides that costs shall not be notice was a sufficient compliance therewith. I allowed in a suit to foreclose a logger's lien
unless a demand for payment of the lien has An "estate for life" is a "freehold" estate been made before suit, unless the court finds not of inheritance. Cummings v. Cummings, that the claimant had reasonable grounds 75 Atl. 210, 211, 76 N. J. Eq. 568. to believe that the owner or a person having
Life estates are freehold estates not of control of the property on which the lien was inheritance, and an estate that may last for claimed was attempting to defraud the claim a life or lives, that is not inheritable, not at ant. Held, that the terms “lienholder” and will or for any fixed period of time, is a “lien claimant” included a person having a "life estate.” Disley v. Disley, 75 Atl. 481, lienable claim, though not perfected, and 483, 30 R. I. 366. hence a demand before the filing of the lien notice was a sufficient compliance therewith.
"The very idea of a 'life estate' pre Sumpter v. Burnham, 99 Pac. 752, 753, 51 supposes a fee as existing elsewhere than in Wash. 599.
the tenant for life, though the latter may be empowered to convey the fee and thus divest
him who, but for the exercise of the power, LIEU OF
would be holden of the fee conditionally, or See In Lieu ol.
a contingent remainderman." Beatson
Bowers, 91 N. E. 922, 924, 174 Ind. 601. LIFE
An "estate for life" is a freehold interest
in lands, the duration of which is confined to See During Natural Life; Expectancy of Life; For Life; Imprisonment for the life or lives of some particular person or Life or Less Than Natural Life; Quar- of some uncertain event. Where a grantee
persons or to the happening or not happening terly During His Natural Life; Take
agreed that the grantors should remain on His Own Life.
the premises during their natural lives, free "By the term 'life,' as here used (refer- from rent, the grantors had a life estate. ring to the fourteenth amendment of the Con- Robb v. New York & C Gas Coal Co., 65 Atl. stitution), something more is meant than 938, 939, 216 Pa. 418. mere animal existence. The inhibition against
"At common law there were two classes its deprivation extends to all those limbs and faculties by which ‘life' is enjoyed. The of life estates': First, conventional 'life esprovision equally prohibits the mutilation of tates,' or those which were created by conthe body, by the amputation of an arm or tract; and, second, those which came into leg, or the putting out of an eye, or the de existence by operation of law. The former struction of any other organ of the body were not impeachable for waste, unless exthrough which the soul communicates with pressly made so by the conveyance. The the outer world. The deprivation, not only reason assigned for this rule is that it is pre of life,' but of whatever God has given, to sumed that, if the grantor intended to limit every one with 'life' for its growth and en
the enjoyment of the estate, he would have
As to joyment, is prohibited by the provision in expressed his intention in the deed. question, if its efficacy be not frittered away the second class of 'life estates,' on the other by judicial decision." MacMullen v. City of hand, they are, as a general rule, impeachMiddletown, 98 N. Y. Supp. 145, 150, 112 App. able for waste; that is to say, the tenant for Div. 81 (quoting Field, J., in Munn v. Illinois, which would result in an injury to the inher
life cannot use the property for any purpose 94 U. S. 113, 24 L. Ed. 77).
itance, save those only to which it had been The use of the word "life,” in a will devoted at the time the life estate came into creating a trust, devising the fund to the existence.” Swayne v. Lone Acre Oil Co., 86 trustees to hold and collect the rents, income, S. W. 740, 742, 98 Tex. 597, 69 L R. A. 986, and profits thereof, and pay over the same to
8 Ann. Cas. 1117. such three children annually, during the term of their natural “life," in the singular, if sig. Testator having devised certain lands to nificant, tends to show that the testator was his three sons by clauses under which, withthinking of the life of each. Brown v. Farm- out more, they would have taken the lands er, 68 N. E. 32, 33, 184 Mass. 136.
in fee, in a subsequent clause provided that
the estates so taken by his sons should only LIFE AND ACCIDENT INSURANCE
be “life estates," and, in case any of them "Life and accident insurance" is a con- died without issue, the land thereby willed tract whereby one, for a stipulated consider for life should go to the other living children ation, agrees to indemnify another against or the issue of such as had died. Held that, injuries by accident or death. State v. Wil two sons having died subsequently to testalett, 86 N. E. 68, 70, 171 Ind. 296, 23 L. R. A. tor's death, without issue, the third took a (N. S.) 197.
fee simple, and not merely a life estate; the LIFE ESTATE
words "life estate" being equivalent to de See Conventional Life Estate; Legal
feasible fee. Smoot v. Kirk (Ky.) 104 S. W. Life Estate.
716, 717. As dower of use, benefit, and profits, see A life estate may be created by a deed, Dower.
lease, or devise, with or without a stipulation
for rent. A lease of premises, to have and A "life insurance" policy is not merely to hold unto lessee, his heirs, etc., so long as a contract of indemnity. It is a contract he should wish to live in the city in which to pay to the beneficiary a sum certain in the premises were, vested a life estate, ter- the event of death; and if the contract was minable only at his death or removal from valid in its inception, and so continues until the city. Thompson v. Baxter, 119 N. W. its maturity, the beneficiary is entitled to 797, 798, 107 Minn. 122, 21 L. R. A. (N. S.) the whole of the stipulated sum. Keckley 575.
v. Coshocton Glass Co., 99 N. E. 299, 300, Base fee distinguished
86 Ohio St. 213, Ann. Cas. 1913D, 607. See Base Fee.
A “life insurance policy” is not a con
tract of indemnity, but is a contract to pay Life right synonymous
money upon the death of the assured in conSee Life Right.
sideration of certain payments made during As property
his life. Wayland y, Western Life IndemniSee Real Property.
ty Co., 148 S. W. 626, 630, 166 Mo. App. 221;
Reed v. Provident Sav. Life Assur. Soc., 82 Tenancies at will, from year to year, N. E. 734, 736, 190 N. Y. 111. or at sufferance distinguished
As insurance A life estate differs from tenancies at will, or from year to year, or at sufferance;
See Insurance. the principal distinction being that the for
Benefit societies mer confers a freehold and the latter a mere
A certificate in a mutual benefit associachattel interest. Thompson v. Baxter, 119 tion, providing that defendant association N. W. 797, 798, 107 Minn. 122, 21 L. R. A. would pay on the member's death to his sis(N. S.) 575.
ter as beneficiary a specified sum on certain
conditions, was a life insurance policy, withLIFE INSURANCE
in Act April 11, 1903 (Acts 1903, c. 119), proSee Life and Accident Insurance. viding that, after its passage, the suicide of Proceeds of, see Proceeds.
a policy holder of any life insurance compaSince the term "life insurance” includes ny doing business within the state should accident policies, Act Pa. June 23, 1885, pro- suicide was voluntary or involuntary, or the
not be a defense to the policy, whether the viding that when a policy of life insurance holder was sane or insane. Head Camp Pacontains a warranty of the truth of the answers contained in the application no untrue Sloss, 112 Pac. 49, 50, 49 Colo. 177, 31 L. R.
cific Jurisdiction Woodmen of the World v. statement made in good faith shall effect a forfeiture, unless the untrue statement re
A. (N. S.) 831. lates to some matter material to the risk, is A “life insurance contract” or policy is applicable to accident insurance. Miller v. "a contract by wbich a company or assoMaryland Casualty Co., 193 Fed. 343, 348, ciation agrees to pay a certain sum of money 113 C. C. A. 267.
on the death of a member, in consideration As chose in action
of the payment by the member of fixed
sums at fixed periods." A certificate issued See Chose in Action.
by a fraternal mutual benefit society, proAs contract to pay certain sum viding that on the death of the member a
Life insurance is a promise to pay a specified sum will be paid his wife out of the certain sum upon the death of the insured. mortuary fund on condition of payments by Ellison v. Straw, 97 N. W. 168, 170, 119 Wis. the member of fixed sums at fixed periods, is 602.
a life insurance contract or policy, within An “insurance" upon life is a contract Code 1887, $ 3251, providing what shall be a by which the insurer, for a stipulated sum, sufficient declaration in an action engages to pay a certain sum of money if an- policy, and is not merely a certificate of other dies within the time limited by the membership in a beneficial society. Cosmopolicy. It is a chose in action and even be- politan Life Ins. Co. v. Koegel, 52 S. E. 166, fore the death of the insured may be as- 168, 169, 104 Va. 619 (citing Logan v. Fidelsigned. Rylander v. Allen, 53 S. E. 1032, ity & Casualty Co., 47 S. W. 948, 146 Mo. 114; 1033, 125 Ga. 206, 6 L. R. A. (N. S.) 128, 61 Bacon Benefit Societies & Life Insurance, Ann. Cas. 355.
$ 52). As expressly defined by Civ. Code Ga. The object of an association was to fur1895, $ 2114, “life insurance" is "a contract, nish each of its members at death a specific by which the insurer for a stipulated sum en
sum for application to his funeral expenses, gages to pay a certain amount if another by a system of mutual contribution; the dies within the time limited by the policy. members at the death of any member paying The life may be that of the assured, or of death assessments. It employed agents to another in whose continuance the assured solicit business from the general public and has an interest.” Mutual Life Ins. Co. of was not founded on principles of philanNew York v. Lane, 151 Fed. 276, 278.
thropy. Held, that its contracts with its
members constituted "life insurance," within , except by due process of law. Coffeyville Burns' Ann. St. 1908, § 4713, forbidding the Vitrified Brick & Tile Co. v. Perry, 76 Pac. taking of an application for insurance upon 848, 850, 69 Kan. 297, 66 L. R. A. 185, 1 the life of any person in the state in favor of Ann. Cas. 936 (citing Gillespie v. People, 58 a person not having a bona fide insurable N. E. 1007, 188 Ill. 176, 52 L. R. A. 283, 80 interest in the life of insured, or who is not Am. St. Rep. 176). related to him within a certain degree. State
The terms "life," "liberty," and "properv. Willett, 86 N. E. 68, 71, 171 Ind. 296, 23
ty," as used in the fourteenth constitutional L. R. A. (N. S.) 197.
amendment, embrace every right which the LIFE INSURANCE COMPANY
law protects; they include not only the right
to own and hold, but also to use, property, In the ordinary sense, a fraternal order and profits and income are within the protecis not a “life insurance company.” That tion of the amendment, subject, however, to class of fraternal organizations which agree the rule that when property is devoted to a to pay a sum of money upon the death of a public use the owner is entitled to earn only member have that characteristic in common such income therefrom as is just and reawith life insurance companies, but the two sonable as between him and the public. classes of corporations are organized under Spring Valley Water Co. v. City and County different acts and for different purposes. of San Francisco, 165 Fed. 667, 676. The insurance company is an ordinary business corporation, and its policies are ob
"The term 'life, liberty, and property,' tained for ordinary business purposes, for in- as used in the federal Constitution, embraces vestment, for security for the benefit of cred every right which the law protects. They it, as well as the protection of the family, include, not only the right to hold and enwhile the beneficiary association is not or joy, but also the means of holding and enganized for purposes of profit, its certificates joying, acquiring, and disposing of, property. cannot be used for business purposes, and The right to labor is property. It is one of its members can receive no pecuniary ad- the most valuable and fundamental of vantage from its certificates and creditors rights. The right to work is the right to cannot reach them. The Modern Woodmen of earn one's subsistence, to live and to support America is not an insurance company within wife and family. The right of master and the meaning of a question in an application servant to enter into contracts, to agree upfor life insurance, “Have you ever been de on the terms and conditions under which the clined or postponed by any company?" Pe- one will employ and the other will labor, is terson v. Manhattan Life Ins. Co., 91 N. E. property. The master has the right to fix 466, 469, 244 Ill. 329, 18 Ann. Cas. 96.
the terms and conditions upon which he is
willing to give employment; the servant LIFE, LIBERTY, AND PROPERTY has the right to fix the terms and conditions Under the Constitution, no one may be upon which he is willing to labor; and any
statute which curtails or limits that right deprived of life, liberty, or property, without due process of law, and the terms, “life," and, in the same measure, of his liberty.
deprives the party affected of his property, “liberty,” and “property” include every per. Both parties are free to enter into, or refuse sonal, political, and civil right, including to enter into the contract. Before the law that to labor, to contract, and to acquire there is the same freedom to employ as to property. Josma v. Western Steel Car &
work, to buy as to sell, to choose one's emFoundry Co., 94 N. E. 945, 946, 249 Ill. 508.
ployé as to choose one's employer." Branson "The terms 'life,' 'liberty,' and 'property' v. Industrial Workers of the World, 95 Pac. embrace every right which the law protects; 354, 361, 30 Neb. 270 (quoting Goldfield they include not only the right to own and Consol. Mines Co. v. Goldfield Miners' Union hold, but also the right to use and enjoy, No. 220, 159 Fed. 500). property.” Kansas City Gas Co. v. Kansas City, 198 Fed. 500, 510 (quoting Spring Valley LIFE, LIBERTY, AND PURSUIT OF Water Co. v. San Francisco, 165 Fed. 667).
HAPPINESS The terms “life,” "liberty,” and “prop- The refusal to permit one to engage in a erty" are representative terms, and intended business of an undertaker is a violation of a to cover every right to which a member of right to enjoy "life, liberty, and the pursuit the body politic is entitled under the law. of happiness,” secured under the state and These terms include the right of self-defense, federal Constitutions, unless there is some freedom of speech, religious and political good reason for the refusal; and the refusal freedom, exemption from arbitrary arrests, to permit one to bury the dead body of a reland the right freely to buy and sell as others ative or friend, except under an unreasonmay. Indeed, they may embrace all our lib- able limitation, is an unlawful interference erties, personal, civil and political, including with a private right. Wyeth v. Board of the rights to labor, to contract, to terminate Health of City of Cambridge, 86 N. E. 925, contracts, and to acquire property. None of 927, 200 Mass. 474, 23 L. R. A. (N. S.) 147, 128 these liberties and rights can be taken away, | Am. St. Rep. 439.