33 Ala. 534 | Ala. | 1859
The complainants in the original bill, Schnetz & Hewitt, and Thomas Moore, one of the respondents, at Louisville in the State of Kentucky, made a written contract under seal, whereby the former agreed to make an engine, and put it on board of a certain boat; and the latter agreed to pay therefor $3,400 during the progress of the work, and, besides, to give three “ notes or
1. An attempt is made to sustain the complainants’claim to a prior lien under a statute of the State of Kentucky, where the contract was made, and the indebtedness to complainants was incurred. By that statute, steamboats, built, repaired and equipped in the State, are made liable for all debts contracted by the master, owner, or consignee thereof, on account of work, supplies, or materials, furnished towards the building, repairing, fitting, furnishing or equipping such steamboats, their engines, &e.; and a preference over all other debts, except for the wages of the officers and crew, is given. By the same statute it is provided, that the “lien given by the act” is invalid against a purchaser without notice, unless suit be commenced within twelve months; but that a notice of the lien, endorsed upon, or attached to the enrollment of the vessel, shall operate as actual notice. The preference given by the Kentucky statute cannot operate to defeat liens acquired by virtue of attachments and libels in this State before it was set up. This priority, or lien given by the Kentucky statute, is not a matter of contract. “It is extrinsic, and is rather a matter of personal privilege,” given by the lex loci contractus.—Harrison v. Sterry, 5 Cranch, 298, 299. The just “comity,” which is recognized in the law, requires that a contract should be expounded, and its obligations ascertained, according to the law of the country where it is made. But this principle does not extend to a recognition of liens, given by the foreign law, when it would operate prejudicially to
A different rule may apply, in reference to maritime liens, existing by virtue of the general maritime law. There are, doubtless, reasons why such liens should have their superiority recognized, which do not apply to domestic liens. The law which gives them existence, is common to most, if not all commercial countries; and the necessities of maritime commerce seem necessarily to require a precedence for its liens.—Story’s Con. of Laws, § 402. A sound public policy does not require, that liens, such as those springing up under the Kentucky statute, upon boats navigating our inland rivers, should have conceded to them a priority over other liens, which may be acquired in other States to which they may be carried. Steamboats might be covered up, if such priority was allowed, by antecedent liens, of which there was no notice; and great injustice might be done to those who trusted the boat, upon the assumption of its liability ; and there would be great room for collusive arrangements, to shelter the boat, by virtue of such liens, from just debts.
2. It is contended that the complainants have no lien by virtue of their contract. It is argued, that the parties, in providing that Schnetz '& Hewitt should retain a special lien, contemplated no other than the statutory lien. If this be so, the parties have done a vain and useless thing, iii bringingthe subject of a lien into their contract. The language employed is appropriate to create alien, and to provide for its continuance. If the parties intended that the lien so held should exist by virtue of the statute of
We give effect to the words of the contract, and allow a motive to the parties in the use of them, when we understand them as creating a lien ; one to exist by virtue of, and to have effect determinable by, the contract. We adopt that view of the question, and thus avoid the necessity of considering what would be the rights of the parties, if there were no other lien than that given by the statute of Kentucky.
3. It is contended for appellants, that the well-ascertained technical meaning of the word lien, is a right to retain possession of property until a demand is satisfied; and that it must be so understood, where it occurs in the written contract above-named. It is true that common-law liens—for example, liens of carriers, inn-keepers, factors, and artificers—are mere rights to retain until the specific debt is satisfied, and cannot continue without possession. But, whatever may be the import of the word, when applied to that class of cases, or whatever may have been its original meaning, it has acquired, in our law, a much more extended signification. It is used to designate all the various charges of debts upon land or personalty, which are created by statute, or recognized in chancery and maritime law, although neither connected with, nor dependent upon possession.—Willard’s Equity Jur. 123. ■ Thus, we have the lien of a judgment; the lieu of tin execution; the lien of a partner; the lien of a legal or equitable mortgage; the lien of a vendor, and various other charges which are denominated liens; and in courts of equity, the term lien is used to denote a charge or incumbrance on a thing, where there is neither jus in re, nor jus ad rem, nor possession of the thing.—Peck v. Jenness, 7 Howard’s Rep. 612, 619; The Brig Nestor, 1 Story, 73.
The term lien, having so comprehensive a signification, includes an equitable mortgage; and no perversion of its meaning will be involved in construing the written contract of the parties as an equitable mortgage.
A lien merely co-existent with the possession of the boat, could not have been contemplated. The boat was not built by Schnetz & Iiewitt. It does not seem to have been designed that it should ever go into their possession. The payments were to be made in four, six, and eight months. The contract provides, that the lien was to continue until the debts were paid. It wmuld be a most unreasonable inference, that Schnetz & Hewitt were to retain the boat for eight months. That a steamboat should for eight months lie up, depreciating from natural decay, yielding no return for the heavy outlay in its construction, and probably requiring some expensé to take care of it, would have been a most unreasonable exaction for Schnetz & Hewitt to make, or for Moore to grant. The loss from the delay would have been totally disproportioned to the interest upon the amount, or the value of the forbearance to collect it. f These considerations prove, with satisfactory certainty, the intention to create a lien for the security of the debt, which would exist without possession by the creditor. Such a lien has every characteristic of an equitable mortgage, and may properly be so denominated. Every agreement for a lien or charge in rem constitutes a trust, and is accordingly governed by the general doctrine of trusts. Such a lien or eharge*is called an equitable mortgage, because courts of chancery, regarding them as trusts to be enforced, attach to them the incidents of a mortgage. Thus, an agreement that bills should be paid out of the proceeds of certain property has been held to create an equitable mortgage.—Miller on Equitable Mortgages, 3. An agreement, “ pledging and hypothecating” property for the payment of certain bills, was enforced as an equitable mortgage. Fletcher v. Morey, 2 Story, 555. A coutractthat a party “ should have and maintain a lien ” on chattels was characterized as “in the nature of an equitable mortgage,”
The majority of the court regard the declaration made by Moore to the surveyor and inspector of customs, and endorsed by his directions upon the enrollment of the vessel, upon the averments of the bill above stated, as a declaration of a trust in favor of Schnetz & Hewitt, for the entire amount of debt secured by the drafts described in the endorsement upon the enrollment, which trust, they think, is valid in equity, and being sustained by proof, must be upheld in this case. Taking all the circumstances alleged in the bill together, my opinion is, that the endorsement upon the enrollment was simply made by Moore's direction for the purpose of giving notice of the pre-existing statutory lien, and was not designed to evidence the declaration of any new trust. The authoriities referred to on the brief of counsel, show that such a declaration of trust, as my brethren suppose was made, will be sustained in equity.
The decree of the court below is reversed, and the cause remanded, that a decree may be rendered consistent with the foregoing opinion. The appellant must pay the costs of this court.