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Bouvier's Law Dictionary, Revised 6th Edition (1856)

LIEN, contracts. In its most extensive signification, this term includes
every case in which real or personal property is charged with the payment of
any debt or duty; every such charge being denominated a lien on the
property. In a more limited sense it is defined to be a right of detaining
the property of another until some claim be satisfied. 2 East 235; 6 East
25; 2 Campb. 579; 2 Meriv. 494; 2 Rose, 357; 1 Dall. R. 345.
2. The right of lien generally arises by operation of law, but in some
cases it is created by express contract.
3. There are two kinds of lien; namely, particular and general. When a
person claims a right to retain property, in respect of money or labor
expended on such particular property, this is a particular lien. Liens may
arise in three ways: 1st. By express contract. 2d. From implied contract, as
from general or particular usage of trade. 3d. By legal relation between the
parties, which may be created in three ways; When the law casts an
obligation on a party to do a particular act, and in return for which, to
secure him payment, it gives him such lien; 1 Esp. R. 109; 6 East, 519; 2
Ld. Raym. 866; common carriers and inn keepers are among this number. 2.
When goods are delivered to a tradesman or any other, to expend his labor
upon, he is entitled to detain those goods until he is remunerated for the
labor which he so expends. 2 Roll. Ab. 92; 3 M. & S. 167; 14 Pick. 332; 3
Bouv. Inst. n. 2514. 3. When goods have been saved from the perils of the
sea, the salvor may detain them until his claim for salvage is satisfied;
but in no other case has the finder of goods, a lien. 2 Salk. 654; 5 Burr.
2732; 3 Bouv. Inst. n. 2518. General liens arise in three ways; 1. By the
agreement of the parties. 6 T. R.14; 3 Bos. & Pull. 42. 2. By the general
usage of trade. 3. By particular usage of trade. Whitaker on Liens 35; Prec.
Ch. 580; 1 Atk. 235; 6 T. R. 19.
4. It may be proper to consider a few, general principles: 1. As to the
manner in which a lien may be acquired. 2. To what claims liens properly
attach. 3. How they may be lost. 4. Their effect.
5.-1. How liens may be acquired. To create a valid lien, it is
essential, 1st. That the party to whom or by whom it is acquired should have
the absolute property or ownership of the thing, or, at least, a right to
vest it. 2d. That the party claiming the lien should have an actual or
constructive, possession, with the assent of the party against whom the
claim is made. 3 Chit. Com. Law, 547; Paley on Ag. by Lloyd, 137; 17 Mass.
R. 197; 4 Campb. R. 291; 3 T. R. 119 and 783; 1 East, R. 4; 7 East, R. 5; 1
Stark. R. 123; 3 Rose, R. 955; 3 Price, R. 547; 5 Binn. R. 392. 3d. That the
lien should arise upon an agreement, express or implied, and not be for a
limited or specific purpose inconsistent with the express terms, or the
clear, intent of the contract; 2 Stark. R. 272; 6 T. R. 258; 7 Taunt. 278;.
5 M. & S. 180; 15 Mass. 389, 397; as, for example, when goods are deposited
to be delivered to a third person, or to be transported to another place.
Pal. on Ag. by Lloyd, 140.
6.-2. The debts or claims to which liens properly attach. 1st. In
general, liens properly attach on liquidated demands, and not on those which
sound only in damages; 3 Chit. Com. Law, 548; though by an express contract
they may attach even in such a case as, where the goods are to be held as an
indemnity against a future contingent claim or damages. Ibid. 2d. The claim
for which the lien is asserted, must he due to the party claiming it in his
own right, and not merely as agent of a third person. It must be a debt or
demand due from the very person for whose benefit the party is acting, and
not from a third person, although the goods may be claimed through him. Pal.
Ag. by Lloyd, 132.
7.-3. How a lien may be lost. 1st. It may be waived or lost by any
act or agreement between the parties, by which it is surrendered, or becomes
inapplicable. 2d. It may also be lost by voluntarily parting with the
possession of the goods. But to this rule there are some exceptions; for
example, when a factor by lawful authority sells the goods of his principal,
and parts with the possession under the sale he is not, by this act, deemed
to lose his lien, but it attaches to the proceeds of the sale in the hands
of the vendee.
8.-4. The effect of liens. In general, the right of the holder of the
lien is confined to the mere right of retainer. But when the creditor has
made advances on the goods of a factor, he is generally invested with the
right to sell. Holt's N P. Rep. 383; 3 Chit. Com. Law, 551; 2 Liverm. Ag.
103; 2 Kent's Com. 642, 3d ed. In some cases where the lien would not confer
power to sell, a court of equity would decree it. 1 Story Eq. Jur. Sec. 566;
2 Story, Eq. Jur. Sec. 1216; Story Ag. Sec. 371. And courts of admiralty
will decree a sale to satisfy maritime liens. Ab. Sh. pt. 3, c10. Sec. 2;
Story, Ag. Sec. 371.
9. Judgments rendered in courts of record are generally liens on the
real estate of the defendants or parties against whom such judgments are
given. In Alabama, Georgia and Indiana, judgment is a lien; in the last
mentioned state, it continues for ten years from January 1, 1826, if it was
rendered from that time; if, after ten years from the rendition of the
judgment, and when the proceedings are stayed by order of the court, or by
an agreement recorded, the time of its suspension is not reckoned in the ten
years. A judgment does not bind lands in Kentucky, the lien commences by the
delivery of execution to the sheriff, or officer. 4 Pet. R. 366; 1 Dane's R.
360. The law seems to be the same in Mississippi. 2 Hill. Ab. c. 46, s. 6.,
In New Jersey, the judgments take priority among themselves in the order the
executions on them have been issued. The lien of a judgment and the decree
of a court of chancery continue a lien in New York for ten years, and bind
after acquired lands. N. Y. Stat. part 3, t. 4, s. 3. It seems that a
judgment is a lien in North Carolina, if an elegit has been sued out, but
this is perhaps not settled. 2 Murph. R. 43. The lien of a judgment in Ohio
is confined to the county, and continues only for one year, unless revived.
It does not, per se, bind after acquired lands. In Pennsylvania, it
commences with the rendering of judgment, and continues five years from the
return day of that term. It does not, per se, bind after acquired lands. It
may be revived by scire facias, or an agreement of the parties, and terre
tenants, written and filed. In South Carolina and Tennessee a judgment is
also a lien. In the New England states, lands are attached by mesne process
or on the writ, and a lien is thereby created. See 2 Hill. Ab. c. 46.
10. Liens are also divided into legal and equitable. The former are
those which may be enforced in a court of law; the latter are valid only in
a court of equity. The lien which the vendor of real estate has on the
estate sold, for the purchase money remaining unpaid, is a familiar example
of an equitable lien. Math. on Pres. 392. Vide Purchase money. Vide,
generally, Yelv. 67, a; 2 Kent, Com. 495; Pal Ag. 107; Whit. on Liens; Story
on Ag. ch. 14, Sec. 351, et seq: Hov. Fr. 35.
11. Lien of mechanics and material men. By virtue of express statutes in
several of the states, mechanics and material men, or persons who furnish
materials for the erection of houses or other buildings, are entitled to a
lien or preference in the payment of debts out of the houses and buildings
so erected, and to the land, to a greater or lessor extent, on which they
are erected. A considerable similarity exists in the laws of the different
states which have legislated on this subject.
12. The lien generally attaches from the commencement of the work or the
furnishing of materials, and continues for a limited period of time. In some
states, a claim must be filed in the office of the clerk or prothonotary of
the court, or a suit brought within a limited time. On the sale of the
building these liens are to be paid pro rata. In some states no lien is
created unless the work done or the goods furnished amount to a certain
specified sum, while in others there is no limit to the amount. In general,
none but the original contractors can claim under the law; sometimes,
however, sub-contractors have the same right.
13. The remedy is various; in some states, it is by scire facias on the
lien, in others, it is by petition to the court for an order of sale: in
some, the property is subject to foreclosure, as on a mortgage; in others,
by a common action. See 1 Hill. Ab. ch. 40, p. 354, where will be found an
abstract of the laws of the several states, except the state of Louisiana;
for the laws of that state, see Civ. Code of Louis. art. 2727 to 2748. See
generally, 5 Binn. 585; 2 Browne, R. 229, n. 275; 2 Rawle R. 316; Id. 343;
3 Rawle, R. 492; 5 Rawle R. 291; 2 Whart. R. 223; 2 S. & R. 138; 14 S. & R.
32; 12 S. & R. 301; 3 Watts, R. 140, 141; Id. 301; 5 Watts, R. 487; 14 Pick.
P,. 49; Serg. on Mech. Liens.

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