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Respondentia by

owner.

Respondentia by

master.

Rate of interest.

Obliga

tions of

$1687. The owner of cargo may hypothecate it upon respondentia, at any time and place, and for any lawful purpose.

Conard v. Atlantic Ins. Co., 1 Peters, 386, 436; see Franklin Ins. Co. v. Lord, 4 Mason, 248.

S 1688. The master of a ship may hypothecate its cargo upon respondentia, only in a case in which he would be authorized to hypothecate the ship and freightage, but is unable to borrow sufficient money thereon for repairs or supplies which are necessary for the successful accomplishment of the voyage; and he cannot do so, even in such case, if there is no reasonable prospect of benefiting the cargo thereby. The Gratitudine, 3 Rob. Adm., 196, 263; ship Active, 2 Wash. C. C., 237; see Pope v. Nickerson, 3 Story, 465; The Osmanli, 3 W. Rob., 214; 7 Notes of Cas., 322; The Lord Cochrane, 2 W. Rob., 312; The Prince Regent, cited, 2 id., 83; The Priscilla, 1 Lush. Adm., 1; La Constancia, 4 Notes of Cases, 285.

S1689. The provisions of sections 1678 to 1685 apply equally to loans on respondentia.

See The Gratitudine, 3 Rob. Adm., 196, 260; The Nostra
Senora del Carmine, 29 Eng. L. & E., 572; 18 Jur., 730;
The Osmanli, 3 W. Rob., 214; 7 Notes of Cas., 322.

$ 1690. The owner of a ship is bound to repay to ship owner. the owner of its cargo all which the latter is compelled to pay, under a contract of respondentia made by the master, in order to discharge its lien.

Duncan v. Benson, 1 Exch., 537.

CHAPTER VI.

OTHER LIENS.

SECTION 1691. Lien of seller of real property.

1692. When transfer of contract waives lien.

1693. Extent of seller's lien.

1694. Lien of seller of personal property.
1695. Purchaser's lien on real property.

1696. Lien for services.

SECTION 1697. Lien of factor.

1698. Banker's lien.

1699. Shipmaster's lien.

1700. Seamen's lien.

1701. Officer's lien.

1702. Attorney's lien.
1703. Judgment lien.
1704. Mechanic's lien.

1705. Lien on ships.

1706. Enforcement of lien.

$1691. One who sells1 real property has a special lien thereon, independent of possession,2 for so much of the price as remains unpaid, and unsecured otherwise than by the personal obligation of the buyer.'

'This lien exists only in favor of the seller, and one who

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lends the purchase-money to the buyer cannot enforce
it (Marquat v. Marquat, 7 How. Pr., 417); see
McKillip v. McKillip, 8 Barb., 552. But persons
claiming under the seller may do so (Selby v. Selby,
4 Russ., 336).

Story Eq. Jur., § 1218.

The receipt of security for part of the price (Hallock v.
Smith, 3 Barb., 267) or payment of such part (4 Kent
Com., 151; Garson v. Green, 1 Johns. Ch., 308), does
not affect the lien for the residue. But in Fish v.
Howland (1 Paige, 20), it was held that acceptance
of a mortgage on the land sold, for part of the price,
waived the entire lien.

This lien exists only where land has been sold for
money, and cannot be used to enforce any other
obligation (McKillip v. McKillip, 8 Barb., 552).
"Price" has been elsewhere defined as a pecuniary
consideration.

Story Eq. Jur., § 1217; Garson v. Green, 1 Johns. Ch.,
308; Bradley v. Bosley, 1 Barb. Ch., 125; Stafford
v. Van Rensselaer, 9 Cow., 316; Mackreth v. Sym-
mons, 15 Ves., 329; Nairn v. Prouse, 6 id., 752. This
lien exists upon the sale of a mere equitable title,
as well as in the case of a legal one (Warren v. Fenn,
28 Barb., 333).

The acceptance of any security, except as mentioned,
waives the lien (Coit v. Fougera, 36 Barb., 195; Vail
v. Foster, 4 N. Y., 312; Fish v. Howland, 1 Paige,
20; Warner v. Van Alstyne, 3 id., 513; Gilman v.
Brown, 1 Mason, 191; aff'd, 4 Wheat., 255).

Taking the buyer's note or bond does not waive this
lien (Garson v. Green, 1 Johns. Ch., 308; Hallock v.
Smith, 3 Barb., 267).

Lien of selproperty.

ler of real

When trans

fer of con

S1692. Where a buyer of real property gives to tract waives the seller a written contract for payment of all or

lien.

Extent of seller's lien.

Lien of seller of personal property

Purchaser's

lien on real property.

part of the price, an absolute transfer of such contract, by the seller, waives his lien to the extent of the sum payable under the contract.

Hallock v. Smith, 3 Barb., 267. A transfer in trust to

pay debts, and return the surplus, does not waive the lien (Id).

$1693. The liens defined in sections 1691 and 1695 are valid against every one claiming under the debtor, except a purchaser or incumbrancer in good faith' and for value."

'Hallock v. Smith, 3 Barb., 267; Champion v. Brown, 6 Johns. Ch., 398.

Warren v. Fenn, 28 Barb., 333; Burlingame v. Robbins, 21 id., 327; Shirley v. Congress, &c., Refinery, 2 Edw, 505. But compare Bayley v. Greenleaf, 7 Wheat., 46.

$1694. One who sells personal property has a special lien thereon, dependent on possession, for its price, if it is in his possession when the price becomes payable; and may enforce his lien in like manner as if the property was pledged to him for the price.

Thus, the seller may resell the property for account of the buyer (Sands v. Taylor, 5 Johns., 395; Bement . Smith, 15 Wend., 497; Bogart v. O'Regan, 1 E. D. Smith, 590; Maclean v. Dunn, 4 Bing., 722); and he must give notice of the sale (see Mallory v. Lord, 29 Barb., 454; Fancher v. Goodman, id., 315). These rules are the same as those concerning the sale of a pledge. It has indeed been held that the property may be resold at private sale, in certain cases (Crooks v. Moore, 1 Sandf., 297), but upon the whole, the commissioners recommend a different rule.

$1695. One who pays to the owner any part of the price of real property, under an agreement for the sale thereof, has a special lien upon the property, independent of possession, for such part of the amount paid as he may be entitled to recover back, in case of a failure of consideration.

Tompkins v. Seely, 29 Barb., 212; Burgess v. Wheate, 1 Wm. Blacks., 123; Lacon v. Mertins, 3 Atk., 1; Shirley v. Shirley, 7 Blackf., 452.

services.

$1696. Every person who, while lawfully in pos- Lien for session 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 a special lien thereon, dependent on possession, for the compensation, if any, which is due to him from the owner for such service.

It is believed that this section is in accordance with the
present law of this state (see Morgan v. Congdon, 4 N.
Y., 552; Baker v. Hoag, 7 id., 557; Steinman v. Wilkins,
7 Watts & S., 466; Schmidt v. Blood, 9 Wend., 268);
though it undoubtedly gives a broader right of lien
than is allowed in England (see Scarfe v. Morgan, 4
M. & W., 283; Jackson v. Cummins, 5 M. & W., 342;
Steadman v. Hockley, 15 M. & W., 553), or than is
allowed by some decisions in this state (Grennell v.
Cook, 3 Hill, 485; Fox v. M'Gregor, 11 Barb., 41).

factor.

S1697. A factor has a general lien, dependent on Lien of possession, for all that is due to him as such, upon all articles of commercial value that are intrusted to him by the same principal.

Coote Mortg., 283; Knapp v. Alvord, 10 Paige, 205;
Bryce v. Brooks, 26 Wend., 367; Buckley v. Packard,
20 Johns., 421; Reynolds v. Davis, 5 Sandf., 267;
and see Bank of Rochester v. Jones, 4 N. Y., 497;
Winter v. Coit, 7 N. Y., 288; Enoch v. Wehrkamp, 3
Bosw., 398.

lien.

S 1698. A banker has a general lien, dependent on Banker's possession, upon all property in his hands belonging to a customer, for the balance due to him from such customer in the course of the business.

Davis v. Bowsher, 5 T. R., 488. See Brandao v. Burnett,
3 C. B., 519; rev'g S. C., 6 M. & G., 630; and affirm.
ing S. C., 1 M. & G., 908; Bank of Metropolis v. New
England Bank, 1 How. [U. S.], 234; 6 id., 212; Van
Amee v. Bank of Troy, 8 Barb., 312; 5 How. Pr., 161;
McBride v. Farmers' Bank, 25 Barb., 657; 26 N. Y.,
450.

ter's lien

S1699. The master of a ship has a general lien,' Shipmasindependent of possession, upon the ship2 and freightage, for advances necessarily made, or liabilities.

Seamen's

lien.

necessarily incurred by him for the benefit of the ship, but has no lien for his wages.*

'In England, this lien was not recognized at common law, as to either ship (Hussey v. Christie, 9 East, 426; 13 Ves., 594; Wilkins v. Carmichael, 1 Doug., 101; The Johannes Christoph, 33 Eng. L. & E., 600) or freightage (Bristow v. Whitmore, 4 De Gex. & J., 325; Gibson v. Ingo, 6 Hare, 112; Atkinson v. Cotesworth, 3 B. & C., 647; Smith v. Plummer, 1 B. & Ald., 575; The Favorite, 2 Rob. Adm., 232), but it is now established by statute.

'In Van Bokkelin v. Ingersoll, 5 Wend., 315, 326, Chan

cellor WALWORTH said: "I know of no principle which would give an equitable lien upon the freight, except as incidental to a lien on the ship." And although the decision of the point was not absolutely necessary in that case, yet it is clear that this was the ground upon which the actual determination was put, and the remark of the chancellor appears to be just. See also The Packet, 3 Mason, 255; Gardner v. The New Jersey, 1 Peters Adm., 223. This is the settled rule in this country (Van Bokkelin v. Ingersoll, 5 Wend., 315; 7 Cow., 670; The Packet, 3 Mason, 255; Richardson v. Whiting, 18 Pick., 530; Sorley v. Brewer, 18 How. Pr., 276). This point is settled in this state by the unanimous decision of the Court of Errors (Van Bokkelin v. Ingersoll, 5 Wend., 315), and is generally so held in other states (The Grand Turk, 1 Paine C. C., 73; Fisher. Willing, 8 Serg. & R., 118), except in Massachusetts (Lewis v. Hancock, 11 Mass., 72; Drinkwater v. The Spartan, Ware, 149). In England, the master has, by recent statutes, the same lien as a seaman (17 & 18 Vict., c. 104; 24 Vict., c. 10. See The Salacia, 1 Lush. Adm., 545).

S1700. The mate' and seamen' of a ship have a general lien, independent of possession, upon the ship and freightage for their wages,3 which is superior to every other lien."

'The May Queen, Sprague, 588; Bayly v. Grant, 1 Salk.,

33; Hook v. Moreton, 1 Ld. Raym., 397. Brown v. Lull, 2 Sumn., 443. All classes of persons who render maritime services are included under the name of seamen (The Prince George, 3 Hagg. Adm., 376; Black v. The Louisiana, 2 Peters Adm., 268; Turner's case, Ware, 83; Wheeler v. Thompson, 2 Str., 707; The Jane & Matilda, 1 Hagg. Adm., 187; Sageman v. The Brandywine, 1 Newb. Adm., 5;

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