Third, where a mortgage is acquired by the authority of justice: as where a creditor who had no mortgage obtains a decree of condemnation in his favor., 16. When the. creditor is put into posses sion of the thing, movable or immovable, he has a right to keep it until he is paid what is coking hini ; "and the debtor cannot turn the creditor out of possession, nor make use of , his own thing Without 'the consent of the creditor.
Effect of d Mortgage. First, the creditor has a right to sell the thing pledged, whether the creditor has it in his possession or not. Under the French law, it was a right' to have it sold.. Cushing's Domat, p. 647.
Second, a right on ' the part of the creditor to follow the property, into whosoever hands it has come, whether movable or immovable.
Third, a preference of the first creditor to whom the property is mortgaged, and a right on his part to follow the property into the hands of the other creditors.
Fourth, the mortgage is a security for all the consequences of the original debt, as damages, interest, expenses in preserving, etc. See, generally, Domat, part i. lib. in. tit.
i.; Guyot, Rep. Univ. tit. Privilegium; Cush ing's Domat ; Massi, Droit Commerciel.
17. Equitable Liens are such as exist in equity, and of which courts of equity alone take cognizance.
A lien is neither a jus in re nor a jos ad rem it , is not property in the thing, nor does it constitute a right of action for the thing. It more pl•oporly oon'stitutes a charge upon the thing. In regard to these liens, it may be. generally stated that they arise from constructive trusts. They are, therefore, ' wholly independent of the possession of the thing 0, to w13;ich they are attaehed As an ineumbranee; and they can, be enforced only in courts of equity. Story, Eq. Jur. 1217.
An equitable lien on a sale of realty is very differ ent from a lien at law ; for it operates after the possession has been changed, and is available by way of charge instead of detainer. Adams, Eq. Jur. 127.
18. The vendor of land has a lien for the unpaid purchase-money. The principle is stated, n where a conveyance is made prema turely before payment of the price, the money is a charge on the estate in the hands of the vendee," 4 Kent, Comm. 151 ; Story, Eq.
Jur. 1217 ; 1 W. Blackst. 950 ; 15 Ves. Ch. 329 ; 1 Johns. Ch. N. Y. 308 ; 1 Schoales & L. 132 ; 6 Johns. N. Y. 402 -, 7 Wheat. 46 ; 17 Yes. Ch. 433 ; 10 Pet. 625 ; and in the hands of heirs or subsequent purchasers with notice, 15 Ves. Ch. 337 ; Russ. 488 ; 1 Schoales & L. 135 ; against assignees in han'kruptcy, under a general assignment, 1 Brown, Ch. 420 ; 9 Ves. Ch. 100; 2 Ves. & B. Ch. 306 ; 1 Vern. Ch. 267 ; 1 Madd. Ch. 356; and whether the estate is actually conveyed or only contracted to he conveyed. Sugden, Vend. c. 12, p. 541 ; 2 Dick. Ch. 730; 12 Ad. & E. 632.
So, too, where money has been paid prema turely before conveyance made, the purchaser and his representatives have a lien. 3 Younge & J. Exch. 264 ; 11 Price, Exch. 58; 1 P. Will. 278.
So where the purchase-money has been deposited in the hands of a third person, to cover incumbrances. 1 Turn. & R.469 ; 1 Ves. Ch. 478. Yet a lien will not be created for a third party, who was to receive an annuity under a covenant as a part of the considera tion for the conveyance. 3 Sim. Ch. 499; 1 Mylne & K. Ch. 297 ; 2 Keen, 81.
19. The deposit of the title-deeds of an estate gives an equitable lien on the estate. This lien is not favored, and is confined strictly to an actual, immediate, and bond,fide deposit of the title-deeds with the creditor, as a security, in order to create the lien. 12 Ves. Ch. 197; Story, Eq. Jur. 1020 ; 4 Kent, Comm. 150.
In regard to the effect of a conveyance to different alienees, subject to a lien, a differ. ence exists betvveen the rules in England and in the United States. In England, the alieneek must divide the incumbrance. 1 Younge & C. 401 ; 2 Atk. Ch. 448 ; 8 Ves. Ch. 391; 1 Lloyd & G. 252.
One joint tenant has, in many cases, a lien on the common estate for repairs put on by himself above his share of the liability, 1 Ball & B. 199 ; Story, Eq. Jur. 1236 ; Sugden, Vend. 611.
And equity applies this principle even to cases where tenant for life makes permanent improvements in good faith. 1 Sim. & S. 552. So where a party has made improve ments under a defective title. 6 Madd. Ch.