LIEN

The right to retain the lawful possession of the property of another until the owner
fulfills a legal duty to the person holding the property, such as the payment of lawful
charges for work done on the property. A mortgage is a common lien.

In its widest meaning 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.

The right of lien generally arises by operation of law, but in some cases it is created
by express contract.

There are two kinds of lien; 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:

1. By express contract;

2. From implied contract, as from general or particular usage of trade;

3. By legal relation between the parties, which may be created in three ways: 1. 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; 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; 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.

General liens arise in three ways: 1. By the agreement of the parties; 2. By the general
usage of trade; 3. By particular usage of trade.

How Liens May Be Acquired.

To create a valid lien, it is essential: 1. 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; 2. 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. 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; e.g., when goods are deposited to be delivered to a third person or to be
transported to another place.

Lectric Law Library