TITLE XIV. LIEN. CHAPTER I. Liens in General. II. Mortgage. III. Pledge. IV. Bottomry. V. Respondentia. VII. Stoppage in Transit. NOTE.-Although the arrangement of this subject is novel, its propriety and advantages will be perceived at a glance. Mortgages are liens, and, under the provisions of this Code, nothing more. They are subject, therefore, to all the general rules of liens. CHAPTER I. LIENS IN GENERAL. ARTICLE I. DEFINITION OF LIENS. II. CREATION OF LIENS. III. EFFECT OF LIENS. IV. PRIORITY OF LIENS. V. REDEMPTION FROM LIENS. VI. EXTINCTION OF LIENS. ARTICLE I. DEFINITION OF LIENS. SECTION 2872. Lien, what. Lien, what. 2873. Liens, general or special. 2874. General lien, what. 2875. Special lien, what. 2876. Prior liens. 2877. Contracts subject to provisions of this Chapter. 2872. A lien is a charge imposed upon specific property, by which it is made security for the performance of an act. NOTE.-A lien is commonly defined as a right to retain possession of a specific thing, until some charge attached to it is satisfied.-Story Eq. Jur., Sec. 506; 3 Pars. Cont., 5th ed., p. 234. This definition is very narrow one, and applicable only to common law liens, exclusive of mortgages, bottomry, and respondentia bonds, etc. In equity, possession was not essential. There might be an equitable lien upon a fund or subject in the hands of another, which could be maintained and enforced without the lienor's having possession, if the identity of the subject could be distinctly traced.Grinnell vs. Suydam, 3 Sandf., p. 132. There is here preserved, under one name, both the common law and the equitable liens, and under one head all the general principles which affect liens by possession or mortgage. See Sec. 1180 Code of Civil Procedure. 2873. Liens are either general or special. Liens, lien, what. 2874. A general lien is one which the holder General thereof is entitled to enforce as a security for the performance of all the obligations, or all of a particular class of obligations, which exist in his favor against the owner of the property. NOTE.-See McFarland vs. Wheeler, 26 Wend., p. 467; Houghton vs. Matthews, 3 Bos. & P., p. 485. lien, what. 2875. A special lien is one which the holder Special thereof can enforce only as security for the performance of a particular act or obligation, and of such oblibe incidental thereto. tions as may NOTE." Particular act or obligation."-McFarland vs. Wheeler, 26 Wend., p. 467. Incidental obligations. See succeeding section and note. 2876. Where the holder of a special lien is com- Prior liens. pelled to satisfy a prior lien for his own protection, he may enforce payment of the amount so paid by him, as a part of the claim for which his own lien exists. NOTE.-Robinson vs. Ryan, 25 N. Y., p. 320; Bates vs. Johnson, H. R. V. Johns., p. 304. 2877. Contracts of mortgage, pledge, bottomry, or respondentia, are subject to all the provisions of this Chapter. 33-vol. ii. Contracts provisions subject to of this Chapter. Lien, how created. No lien for claim not due. Lien on future interest. Lien may be created ARTICLE II. CREATION OF LIENS. SECTION 2881. Lien, how created. 2882. No lien for claim not due. 2883. Lien on future interest. 2884. Lien may be created by contract. 2881. A lien is created: 1. By contract of the parties; or, 2882. No lien arises by mere operation of law until the time at which the act to be secured thereby ought to be performed. NOTE.-Foster vs. Colby, 3 H. & N., pp. 705, 718. 2883. An agreement may be made to create a lien upon property not yet acquired by the party agreeing to give the lien, or not yet in existence. In such case the lien agreed for attaches from the time when the party agreeing to give it acquires an interest in the thing, to the extent of such interest. NOTE.-Seymour vs. Canandaigua and Niagara Falls R. R. Co., 25 Barb., p. 284; but compare Conderman vs. Smith, 41 Barb., p. 404. In Bibend vs. L. and L. F. & L. Ins. Company, 30 Cal., p. 78, it was held that whenever a person, by contract, intends to create a lien upon personal property thereafter to be acquired by him, the lien, in equity, attaches upon the particular property as soon as the person so contracting acquires the title thereto. 2884. A lien may be created by contract, to take by contract immediate effect, as security for the performance of obligations not then in existence. NOTE.-Robinson vs. Williams, 22 N. Y., p. 380; Murray vs. Barney, 34 Barb., p. 336; Truscott vs. King, 6 N. Y., p. 147; see Fassett vs. Smith, 23 N. Y., p. 252. ARTICLE III. EFFECT OF LIENS. SECTION 2888. Lien, or contract for lien, transfers no title. 2890. Creation of lien does not imply personal obligation. 2892. Holder of lien not entitled to compensation. 2888. Notwithstanding an agreement to the contrary, a lien, or a contract for a lien, transfers no title to the property subject to the lien. NOTE.-At common law a mortgage was regarded as a conveyance of a conditional estate; an estate which became absolute upon a breach of the conditions of the mortgage.-Goodenow vs. Ewer, 16 Cal., p. 461; Fogarty vs. Sawyer, 17 Cal., p. 589; McMillan vs. Richards, 9 Cal., p. 365. But from an early day Courts of equity interfered, and to prevent the hardships consequent by the strict rules of law upon a failure in the performance of the conditions attached to the conveyance, gave to the mortgagor of real property a right to redeem, upon payment, within a reasonable time, of the debt secured. This right was established from a consideration of the real character of the transaction as one of security, and not of purchase, and its purpose was to give effect to the intention of the parties against the terms of the instrument. And this right is now held to be an inseparable incident to every mortgage, and cannot be abandoned or waived, even by express stipulation of the parties at the time of its execution. But with this right in the mortgagor, to redeem from the consequences of his default, which was termed an equity of redemption, as it could be enforced only in a Court of equity, there was recognized a corresponding right in the mortgagee to insist upon the redemption being made within a reasonable period, or a relinquishment of its right, and for that purpose he could also resort to a Court of equity. The proceedings for this purpose, on his part, was the suit, as it was termed, for a foreclosure of the mortgage; that is, for the extinguishment of the equity of redemption held by the mortgagor. The decree in the suit usually directed the mortgagor to assert his right by payment of the principal sum due, interest, and costs, within a designated period, or be barred of his equity. The decree operated directly upon the property, and its effect was to restore the same, upon payment, to the mortgagor; or to vest, upon failure of payment, an absolute title in the mortgagee. To give any efficacy, therefore, to the decree, it was essential that the owner of the equity should be brought before the Court. The equity was regarded as the real and beneficial estate in the land, and was subject to sale and conveyance in any of the ordinary modes of transfer. If it had passed from the mortgagor, the decree would, of course, be of no avail without the presence of his grantee, for it is a rule, as old as the law, that no decree shall prejudice the rights of persons who are not parties to the suit. Without such presence no equity of redemption would be foreclosed, and the mortgagee's estate would remain unaffected as it existed previous to the institution of the suit in which the decree was rendered. The holder of the equity of redemption, of the beneficial estate, was, therefore, an indispensable party to a valid foreclosure. In this State a mortgage is not regarded as a conveyance vesting in the mortgagee any estate in the land, either before or after condition broken. It is regarded, as in fact it is intended by the parties, as a mere security, operating upon the property as a lien or incumbrance only. Here the equitable doctrine is carried to its legitimate result. Between the view thus taken and the common law doctrine, that the mortgage is a conveyance of a conditional estate, there is no consistent intermediate ground. In those States where the mortgage is sometimes treated as a conveyance, and at other times as a mere security, there is no uniformity of decision. The cases there exhibit a fluctuation of opinion between equitable and common law views of the subject, and a hesitation by the Courts to carry either view to its logical consequences. In McMillan vs. Richards, 9 Cal., p. 365, our Supreme Court had occasion to consider the subject at great length, and to observe upon the diversity existing in the adjudged cases. It was there asserted that the equitable doctrine was the true doctrine respecting mortgages. See Nagle vs. Macy, 9 Cal., p. 426; Haffley vs. Maier, 13 id., p. 13; Koch vs. Briggs, 14 id., p. 256; Clark vs. Baker, id., p. 612; and Johnson vs. Sherman, 15 id., p. 287. When, therefore, a mortgage is here executed, the estate remains in the mortgagor, and mere lien or incumbrance upon the premises is created. The proceeding for a foreclosure of the equity of redemption, as those terms are understood, where the common law view of mortgage is maintained, is unknown to our system, so far, at least, as the owner of the estate is concerned. The mortgagee can here, in no case, |