on such instrument. The original indorsement is also evidence to the same extent only.' 13 R. S. (5th ed.), 223; Laws 1833, ch. 279. TITLE XVIII. LIENS. CHAPTER I. Liens in general. II. Liens on real property. III. Liens on personal property in general. IV. Bottomry. V. Respondentia. CHAPTER I. LIENS IN GENERAL. SECTION 1453. Lien, what. 1454. Mortgages. 1455. Judgments. 1456. Mechanics' liens. 1457. Enforcement of lien. 1458. Priority of liens. 1459. Order of resort to different funds. 1460. Extinction of lien. § 1453. A lien is a right to satisfy a claim out of a spe- Lien, what. cific thing, or to retain the same until snch claim is satisfied. § 1454. Mortgages are liens, which are regulated by the Mortgages. title on MORTGAGE. § 1455. Judgments are liens, which are regulated by the Judgments. CODE OF CIVIL PROCEDURE. liens. § 1456. The liens of mechanics, for materials and ser- Mechanics' vices upon real property, are regulated by special statutes. ment of § 1457. The mode of proceeding by a creditor to enforce Enforce a lien within this state, is regulated by the CODE OF CIVIL PPOCEDURE.' 1 As reported complete. lien liens. Priority of § 1458. Other things being equal, different liens upon the same property have priority according to the time of their creation,' except in cases of bottomry and respondentia. Order of resort to different funds Extinction of lien. 1 Barry v. Mutual Ins. Co., 2 Johns. Ch., 608. 1459. One who has a lien upon several things, upon one or more of which another has a separate and subsequent lien or claim, must satisfy his lien, if possible, out of the things upon which he has an exclusive lien.' If there are several successive liens upon one or more of such things, he must, if he can do so without loss, resort first to that thing upon which the liens are fewest, and so proceed inversely to the number of liens.' 1 3 2 Ingalls v. Morgan, 10 N. Y., 186; Besley v. Lawrence, 11 Paige, 581; Story Eq. Jur., § 633. Ct. of Errors, Evertson v. Booth, 19 Johns., 493. Stuyvesant v. Hall, 2 Barb. Ch. R., 155; Gouverneur ♥. § 1460. A lien is extinguishable in like manner with a mortgage. Lien on real proper. ty, what. Lien of seller. CHAPTER II. LIENS ON REAL PROPERTY. SECTION 1461. Lien on real property, what. 1462. Lien of seller. 1463. Against whom valid. 1464. Priority of mortgage for price. § 1461. A lien upon real property is a right to satisfy a claim out of such property, notwithstanding its transfer to another than the debtor. § 1462. The seller of real property has a lien upon the same for so much of the price as remains unpaid,' unless he receives some security for the payment thereof, other than the buyer's personal obligation,' or unless he agrees to waive the same. 'Garson v. Green, 1 Johns. Ch., 308; 1 Washb. Real Prop., 504; Coote Mort., 218; Sto. Eq. Jur., § 1217; Stafford v. Van Rensselaer, 9 Cow., 218. Vail v. Foster, 4 N. Y., 312. 'Fish v. Howland, 1 Paige, 30, whom valid 1463. Such lien is valid against every one except a Against subsequent purchaser or incumbrancer of the property, in good faith, without notice and for value.' 1 Stafford v. Van Rensselaer, 9 Cow., 318. See Bayley v. Greenleaf, 7 Wheat., 46, extending the exception mortgage § 1464. A mortgage, given for the price of real property Priority of at the time of its conveyance, has priority over any lien for price. created by judgment against the buyer before that time.' 11 R. S., 749, § 5. CHAPTER III. LIENS ON PERSONAL PROPERTY. SECTION 1465. Lien on personal property, what. 1466. No lien for unliquidated damages. 1467. Liens general and special. 1468. Lien for service. 1469. What is inconsistent with a lien. 1470. Lien of factors. 1471. Lien of attorneys. 1472. Liens on ships. 1473. Lien of shipmaster. 1474. Lien of seamen. 1475. Termination of lien. § 1465. A lien upon personal property is a right to re- Lien on tain it until a claim against its owner is satisfied. personal property, what. § 1466. A mere right to compensation in unliquidated No lien for damages, cannot in any case give a right of lien. § 1467. Liens upon personal property are either general or special. A general lien is one under which the person having the lien is entitled to retain the thing until payment of the whole of his just claims against the owner. A special lien is one under which the person having the lien can retain the thing only until payment for his services on that particular thing. unliquidat. ed damages Liens genespecial. ral and service. § 1468. Every person who, while lawfully in possession Lien for of an article of personal property renders any service to the owner thereof by labor or skill employed for the protection, improvement, safe keeping or carriage thereof, has What is inconsis lien. a lien thereon for such compensation as is due to him for such service, unless he enters into an agreement inconsistent with such lien.' 1 The cases (Scarfe v. Morgan, 4 M & W., 283; Jackson v. Cummins, 5 M. & W., 342; Steadman v. Hockley, 15 M. & W., 553,) support this rule in substance, though it is somewhat extended. See also Baker v. Hoag, 7 N. Y., 557. § 1469. An agreement or usage that the owner may tent with a withdraw and replace the thing from time to time at his discretion while the contract remains in force, is inconsistent with a lien.' Lien of factor. Lien of attorneys. Lien on ships. Lien of master. 1 Forth v. Simpson, 13 Q. B., 680; Jackson v. Cummins, 5 M. & W., 350. § 1470. A factor has a general lien upon all articles of commercial value that are entrusted to him by the same principal.'1 1 Coote Mortg., 283. § 1471. An attorney at law has a lien upon everything that he receives from or on account of his client, to the extent of his claim for services in respect to the particular transaction, action or proceeding, in the course of which he received the thing. He has also a lien upon every claim which he prosecutes by judicial proceedings, for his costs.2 1 Coote Mortg., 284. 2 Rooney v. Second Av. R. R., 18 N. Y., 368. § 1472. Debts of at least fifty dollars, contracted for the benefit of ships, are liens in the cases provided by the CODE OF CIVIL PROCEDURE. The reference is to the Code of Civil Procedure as reported complete, p. 606. § 1473. The master of a ship has a lien' upon the ship and freight, and upon the cargo to the amount to which the freight is a lien thereon, for advances made and liabilities incurred by him, but has no lien for his wages.' 1 Ingersoll v. Van Bokkelin, 7 Cow., 670; 6 Wend., 314. lien. § 1474. The mate and seamen have the same lien, and Seaman's in addition thereto a lien for their wages. 3 Kent, 166. tion of lien. § 1475. If the owner of the thing, with the free' con- Terminasent of the person having the lien, resumes possession thereof, the lien is ended,' unless the parties otherwise agree, and it is ended, notwithstanding an agreement for its continuance, by such change of possession, as to subsequent purchasers or incumbrancers in good faith, without notice and for value, and as to general creditors of the 1479. When and where ship pledged on bottomry. 1480. Master's authority to hypothecate freight money. 1481. Rate of interest; reduction of. 1482. When money loaned is to be repaid. 1483. Rights of lender when no necessity for bottomry exists. 1484. Bottomry lien, nature of. 1485. Preference of bottomry lien over other liens. 1486. Preference of one bottomry lien over another. what. § 1476. Bottomry is a contract whereby one agrees to Bottomry, repay money loaned on the pledge of a ship, with interest if any is stipulated, on condition that the ship survives certain risks during a specified voyage or period. The brig Draco, 2 Sumn., 157, 191; Thorndike v. Stone, § 1477. Money may be borrowed upon bottomry by the Who may owner or by the master of a ship. borrow on bottomry. |