11. Waiver of Liens. Possession is a necessary element of common-law liens ; and if the creditor once knowingly parts with that possession after the lien attaches, the lien is gone. Strange, 556 ; 1 Atk. Ch. 254; Ambl. 252: Dougl. 97 ; 5 Ohio, 88 ; 6 East, 25, n.; 7 id. 5; 3-Term, 119; 2 Ed. Ch. 181; 5 Binn. Penn. 398: 3 Am. Law Jour. 128 ; 4 N. Y. 497 ; 4 Den. N. Y. 498; 42 Me. 50; 11 Cush. Mass. 231; 2 Swan, Tenn. 561; 23 Vt. 217. But there may he a special agreement ex tending the lien, though not to affect third persons. 36 Wend. N. Y. 467. The delivery may be constructive, Ambl. 252; and so may possession. 5 Ga. 153. A lien cannot be transferred, 8 Pick. Mass. 73 ; but property subject to a lien may be delivered to a third person, as to the creditor's servant, with no tice of thc lien, so as to preserve the lien of_ the original creditor. 2 East, 529 ; 7 id. 5. But it must not be delivered to the owner or his agent. Whitaker, Liens, 71, n.; 2 East, 529 ; 4 Johns. N. Y. 103. But if the property be of a perishable nature, possession may be given to the owner under proper agreements. 1 Atk. Ch. 235 ; 8 Term, 199.
Neglect to insist upon a lien in giving rea oons for a refusal to deliver property on de mand, has' been held a waiver. 1 Campb.
410, n. ; 7 Ind. 21 ; 13 Ark. 437 ; 2 -Blackf. Ind. 465.
12. Where there is a special agreement made, or act done, inconsistent with the exist ence of the lien, such as an agreement to give credit, or where a distinct security is taken, or the possession of the property is acquired for another distinct purpose, and for that only, or where the property is attached by the creditor, no lien arises. 16 Yes. Ch. 275 ; 4 Campb. 146 ; 2 Marsh. 339; 3 Anstr. 881 : 5 Maule & S. 180 ; Mete. Yelv. 67 c; 8 N. H. 441 ; 17 Pick. Mass. 140 ; 15 Mass. 389; 4 Vt. 549. But such agreement must be clearly inconsistent with the lien. 1 Dutch., N. J. 443 ; 32 Me. 319.
The only remedy or use of the lien at com mon law is to allow the creditor to retain possession of the goods. 33 Me. 438 ; 1 Mal". C. C. 319. And he may do this against assignees of the debtor. 1 Burr. 489.
1.3. The Civil Lave Lien. The civil law embraces, under the head of mortgage and privilege, the peculiar securities which, in the common and maritime law, and equity, are termed liens.
In regard to privilege, Domat says, " We clo not reckon in the number of privileges the preference which the creditor has on the movables that have been given him in a pawn, and which are in his custody. The privilege of a creditor is the distinguishing right which the nature of' his credit gives him, and which makes him to be preferred before other creditors, even those who are prior in time, and who have mortgages."
Domat, part 1, lib. iii. tit. i. sect. v.
These privileges were of two kinds : one gave a preference on ell the goods, without any particular assignment on any one thing; the other secures to the creditors their secu rity on certain things, and not on the other goods.
14. Among creditors who axe privileged, there is no priority' of time, but each' one takes in the order of his privilege, and all creditors who have a privilege of the same kind take proportionately although their debts be of different dates. And all privi leges have equally a preference over those of an inferior class, and over debts which do not have this favored character, whether subse quent or antecedent in point of time.
The vendor of immovable property, for which payment has not been made, is pre ferred before creditors of the purchaser, and all other persons, as to the thing sold. By the Roman law, this principle applies equally to movables and immovables; and the. seller may seize upon the property in tbe bands of his vendee, or wherever he can find it.
So, too, a person who hasdent money to re pair a thing, or to make improvements, has this privilege. And this, though he lends to workmen or architects, etc., if it be done with the knowledge of the owner.
Carriers have a privilege not only for the price of carriage, but for money paid on ao count of the goods.
Landloras have a privilege for the rents due from their tenants even on the furniture of the under-tenants, if there be a sub-lease. B,ut not if payment has been made to the tenant by an immediate lessor; although a payment made by the sub-tenant to the land lord would be'good a,s against the tenant.
15. The priVilege was lost by an ovation, , or by any thing in the .origmal contract ' which 'showed that the vendor had taken some other' security inconsistent with the privilege. See Domat, part i. lib. iii. tit. i. sect. v.
Mortgages in the civil law are of two kinds, conventional and -legal. A conventional mortga,ge results from the direct act or cove nant of the parties. A legal mortgage arises by mere act of law.
A mortgage may be acquired in three -ways.
FirSt, with the consent of the debtor, by his agreement.
Second, without the owner's consent, by the quality and bare effect of the engage ment, the nature of which' 18 such that the lavr has annexed to it the security of a mort gage.