26 Ind. App. 175 | Ind. Ct. App. | 1901
An action in replevin by appellant as plaintiff against appellee as defendant, to recover the possession of a mare, and damages for her detention. The issues were joined by an answer in denial and the cause tried by the court. Upon proper request, the court made a special finding of facts and stated its conclusions of law thereon. By its conclusions of law, the court held that appellant could not recover. Appellant excepted to the conclusions of law, and the assignment of errors challenges such conclusions. Appellee has not filed any brief.
The court specially found that appellant was the owner of the mare in December, 1897; that at that time he entered into a contract with one Rusk whereby he loaned the mare to him to be used by him in traveling about the country; that said Rusk’s business was selling monuments and tomb
By the express provision of §7254 Burns 1894, §5292 Horner 1897, Simms had a lien upon the mare for the feed and care bestowed upon her. The question, therefore, presented for decision is simply this: Can this lien which the statute creates in favor of the keeper of a livery stable he assigned to another, and by such assignment the lien be preserved in favor of the assignee ? An answer to this inquiry will be decisive of the question in controversy.
In 2 Jones on Liens (2nd ed.), §§982, 983, it is said: “A common law lien is not a proper subject of sale or assignment, for it is neither property nor is it a debt, but a right to retain property as security for a debt. ‘A lien’, says Mr. Justice Buller, ‘is a personal right, and can not be transferred to another.’ ” Again he says: “A transfer of the property, while the assignor retains the lien debt, destroys the lien, unless the transfer be merely to an agent of the assignor to hold for him, subject to the lien.” Also, that “a lien is a purely personal privilege, and can only be set up by the person to whom it accrued. He can not assign his claim, so as to enable the assignee to set up the lien as a ground of claim or defense to an action for the property or its value as against the general owner.” The case of Ruggles v. Walker, 34 Vt. 468, is illustrative of the principle under consideration. There a manufacturer of starch had a lien for the price of manufacturing several tons of starch for one -who had furnished the materials. The latter was not ready to receive and pay for the starch when it was ready for delivery. He obtained from a third person the amount of his claim and delivered the starch to him, marking it with the name of such third person. The person to whom the starch was delivered notified the owner that he had purchased the manufacturer’s claim, and that he could have the goods by paying what he had agreed to pay the manufacturer. The owner took possession of the starch without paying the price for its manufacture. The person who had made the advances upon it and to' whom it
The lien which Simms had depended upon possession. A voluntary surrender of possession in such case destroys the lien. See Bierly v. Royse, 25 Ind. App. 202, and authorities there cited. Simms voluntarily surrendered the possession of the property to a third person, not as his agent, and for him and in his name to hold the property and enforce the lien, but surrendered it absolutely, with an assignment of Ms claim for feeding and caring for the animal. The lien was not created for, nor could it inure to, the benefit of the appellee. The latter did nothing to entitle him to a lien. In 13 Am. & Eng. Ency. of Law (1st ed.) 624, it is said: “A lien is neither property nor a debt, * * * and is not the subject of sale or assignment.” It is only where the existence of a lien does not depend upon possession that it can be assigned and the assignee be empowered to enforce it. If the lien depends upon possession, it is not assignable. 13 Am. & Eng. Ency. of Law, 625. Jones on Liens, §990. See, also, Watson on Stat. Liens, §1480, and authorities there cited. In New York it was held that one who had a stable keeper’s lien on a horse and sells Ms stable and allows the purchaser to take possession of the horse, he thereby waived his lien unless he made some arrangement by which the horse was to be held for his benefit. Fitchett v. Nanary, 14 N. Y. Supp. 479. Mr. Watson, in
Additional argument or authorities seem useless. It follows that the question propounded, and which precedes the discussion,- must be answered in the negative. The judgment is reversed, and the court below is directed to restate its conclusions of law in harmony with this opinion.