No. 2515. Book 4, tit. 2, chap. 3, sec. 1, § 4. No. 2515. tor may retain, it seems that damages which are in their nature arbitrary cannot be retained, because, till judgment, no man can foretell the amount; such as damages upon torts. But when the damages arise from a breach of a pecuniary contract, there is a certain measure for them, and such damages may well be retained. As the executor is not bound to plead the act of limitations against a just debt, the act shall not operate against him. (a) §4.-What amount may be retained. 2515. The extent of the right of retainer depends upon the fact whether the estate is solvent or insol vent. 1. When the estate of the testator is solvent, the executor may of course retain the whole of the debt due to him, together with interest. 2. When the estate is insolvent, his right to retain is then limited by the rights of other creditors, who are entitled to be paid as well as he. By the common law of England, a creditor could gain an advantage by bringing a suit against the executor and obtaining the first judgment, and, as the executor could not bring such a suit, he was allowed to retain the whole of his claim in preference to all other creditors, to compensate him for this want of capacity of suing himself. (b) In most of the states of this Union, a more equitable mode of making payment, in cases of insolvent estates, has been adopted, and no one is allowed to gain an advantage by bringing a suit against the executor; it follows, therefore, that the executor can lose nothing by his want of capacity of suing himself, and the law gives him the right to retain that to which he would have been entitled, if (a) 1 Madd. Ch. 583. (b) 3 Bl. Com. 18; 11 Vin. Ab. 261. No. 2516. Book 4, tit. 2, chap. 3 sec. 2. No. 2516. He may he had not been an executor, and no more. retain his debt pro rata with other creditors. Such is the case in Alabama, Connecticut, Illinois, Louisiana, Maine, Maryland, Massachusetts, Mississippi, Missouri, New Hampshire, Ohio, Pennsylvania, Rhode Island, South Carolina, and Vermont. (a) In some of the other states the common law right exists. SECTION 2.- -OF REMITTER. 2516. Remitter takes place when he who has the true property, or jus proprietatis in lands, is out of possession, and has no right to enter without recovering possession in an action, has afterward the freehold cast upon him, by some subsequent and of course defective title; in this case he is remitted or put back by operation of law, to his ancient and more certain title. This right of entry, which he has gained by a bad title, is, ipso facto, annexed to his own inherent good one, and the defeasible estate is utterly defeated and annulled by the instantaneous act of law, without his participation or consent. For example, if a tenant in tail discontinue the estate by a conveyance in fee, afterward disseise the discontinuee or grantee, and die seised; his heir shall hold as heir in tail under the original title, and not under the title acquired by the disseisin. By the operation of law he is instantaneously remitted to his better title. The reason assigned for this is, that being so remitted, the owner has no means of asserting his title, because being in possession, he cannot sue himself, and to prevent his loss the law places him in the same situation as if he had established his right by suit. In order to enable the owner of the land to take advantage of this principle, the title must be cast upon him by the law, as by descent; for if he under (a) Griff. Reg. h. t. No. 2517. Book 4, tit. 2, chap. 3, sec. 3, § 1. No. 2518. takes to buy the subsequent estate or right of possession, he is considered as having waived his prior right, and he is not therefore remitted. (a) SECTION 3.-OF THE RIGHT OF LIEN. 2517. A third mode of acquiring a remedy by operation of law is by lien. 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.(b) In a more limited sense, and in that in which it is here used, it is the right of detaining the property of another until some claim is satisfied. Besides the liens which arise by operation of law, there are others created by the express contracts of the parties. Liens may be considered, 1, as to their kinds; 2, as to the manner of acquiring them; 3, as to the claims on which they attach; 4, as to the manner of losing them; and 5, as to their effect. § 1. Of the kind of liens. 2518.-1. When a person has a right to retain property in respect of money or labor expended on such particular property, this is a particular lien. For example, where a tailor has made garments out of (a) 3 Bl. Com. 20. (6) In this general sense, a judgment obtained in a court of record is generally a lien upon real estate; an execution when put in the sheriff's hands, upon personal property. By statute many liens are created, as, for example, recognizances and other obligations of record are sometimes made liens; and persons furnishing materials, or doing work for the construction of a building, have a lien upon it by statute in several of the states of the Union. By the civil law this right existed; a person who furnished materials or performed work on a building had the privilege of hypothec. Dig. 20, 2, 1; Dig. 42, 6, 9, 1. The government has a lien for taxes, upon the real estate on which they have been assessed. A landlord has a lien on the goods of his tenant, while on the premises, for one year's rent, in preference to an execution creditor. No. 2519. Book 4, tit. 2, chap. 3, sec. 3, § 2. No. 2521. cloth delivered to him for the purpose, he is not bound to part with the clothes until his employer has paid him for his services; nor the ship carpenter with a ship which he has repaired; nor can an engraver be compelled to deliver the seal which he has engraved for another, until his compensations have been paid.(a) 2519.-2. A general lien is one which binds all the property of the debtor in the hands of his creditor; as, where an agent has advanced moneys at different times for his principal, he has a general lien on all the goods of the principal in his hands, and he need not part with them till he is fully paid. But the debt which has this binding operation on the goods of the principal, must have been created in the course of the agency, and to this it will be strictly confined. (b) In the same way bankers, insurance brokers, and attorneys at law, have a lien on securities and papers which come into their hands respectively in the course of their business. (c) 2520.-3. Liens may also be divided into legal and equitable. 1. Legal liens are those which are recognized, and may be enforced in a court of law. 2. Equitable liens 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.(d) § 2. How liens may be acquired. 2521. To create a lien, whether it be acquired by the agreement of the parties, either express or implied, (a) 2 Roll. Ab. 92; Blake v. Nicholson, 3 M. & S. 167; Townsend v. Newell, 14 Pick. 332. (b) Story on Ag. § 376; Liverm. on Ag. 38; Paley on Ag. by Lloyd, 140. (c) Ex parte Nesbitt, 2 Sch. & Lef. 279; Ex parte Sterling, 16 Ves. 209; Olive v. Smith, 5 Taunt. 56; Spring v. So. Car. Ins. Co. 8 Wheat. 268; Story on Ag. 381; Paley on Ag. by Lloyd, 81, 131. (d) Matth. on Pres. 392. No. 2522. Book 4, tit. 2, chap. 3, sec. 3, § 2. No. 2522. or by act or operation of law, the following are essential requisites: 1. The party from whom it is acquired should have the absolute property or ownership in the thing which is the subject of the lien, or at least a right to vest it; for unless he has such right he can give no right to the creditor to hold it, the owner having the sole authority to bind or refuse to bind his property for the payment of a debt due by another. 2. The party claiming the lien must have an actual or constructive possession, with the assent, express or implied, of the party against whom the claim is made.(a) 3. The lien should arise upon an agreement, express or implied, and not for a specific purpose inconsistent with the express terms or the clear intent of the contract. Factors, for example, have a general lien for all claims arising from their agency, upon all goods belonging to their principal in their possession, which came to them as such. But should a horse, for example, be loaned by the principal to the agent for a particular purpose, the agent would have no lien upon it.(b) 2522. When a man acquires the possession of goods belonging to another, by finding, he has no lien against them for any expenses he has been put to in regard to them, except in one case; this is when goods are lost at sea. For the purpose of encouraging commerce, and to reward a man who runs considerable personal risks in saving such goods, the law allows the finder a compensation, known by the name of salvage, (c) and for this he has a lien. But when the finder of goods on land has been put to any expense (a) 3 Chit. Com. Law, 547; Paley on Ag. by Lloyd, 137; Jordan v. James, 5 Ham. 88. (b) Jarvis v. Rogers, 15 Mass. 389. (c) Hartford v. Jones, 2 Salk. 654; S. C. 1 Ld. Raym. 393; Hamilton v. Davis, 5 Burr. 2732; Baring v. Day, 8 East, 57. |