LIENS 1. Liens, general and specifie.—A lien as already noted is a chattel interest in real estate, and is personal property. It involves the relation of debtor and creditor, and if the debt is not paid, the creditor can sell or require the sale of the property affected by the lien. There can be no lien unless the debt is one that is enforceable by law. A pledge of property to secure a promise given without consideration does not create an enforceable lien.
Liens are general and specific. A general lien af fects all property belonging to the debtor. A specific lien affects only the particular property subject to it either .by some act of the debtor, or by the operation of law. A judgment is an example of a general lien. When recovered and docketed, or in some jurisdictions if an execution to enforce it is placed in the hands of the sheriff, it attaches to all property owned by the debtor. The most important example of a specific lien is a mortgage. Because of its wide use in the business world, and of its consequent importance, the itiortgage will be considered under a separate chapter.
2. Lien of judgment is the deter mination of the rights of parties thru an action at law.
The only judgments which become liens on real prop erty are "money judgments" or those which determine the right of a creditor to receive paynient of a debt. Such judgments, and some other liens, affect all prop erty, personal as well as real, but the present con sideration of liens is concerned only with their re lations to real property.
A judgment in an action may, for example, enjoin a person from erecting a contemplated building in viola tion of a restriction. Such a judgment creates no lien on the property since it does not call for the pay ment of money. If the same judgment, however, awards a sum of money to cover the costs of the action, that part of the judgment becomes a lien.
3. How lien of judgment is money judgment is enforced by docketing and execution. By docketing is meant the entry of a note of the judg ment in a book of public record known as a "judg ment docket" or book. This book is kept in the office
of the county clerk, and is indexed alphabetically ac= cording to the names of the debtors. Execution is a writ to the sheriff directing him to sell all property in his bailiwick belonging to the debtor at the time of docketing the judgment, or afterward coming into the ownership of the debtor. No more property is sold than to satisfy the judgment, but until the judg ment is paid it may be enforced by execution when ever any property of the debtor can be found. Exe cution may be issued to one or more sheriffs in the state or province.
The sheriff sells all the right, title and interest of the debtor in the property offered for sale under execu tion. Since the judgment attaches to what the debtor owns and nothing more, the sale does not purport to include the entire title to the property, but only the debtor's interest in it. If prior to the docketing of the and in some cases prior to an execution being placed in the proper sheriff's hands, the debtor has conveyed the property, the judgment would not affect the title which he had transferred and no at tempted sale by the sheriff would be of interest in the property. This would be the case if the deed had not been recorded, even tho it had been actually delivered to a purchaser in good faith, and for value.
The same principle applies to a mortgage which has been delivered but not recorded. The mortgage would be a lien superior to the judgment. Sometimes a question of fact must be determined, whether or not the instrument in question was actually delivered, but unless there is a statute to the contrary, the principle holds true that the lien does not affect the title con veyed by an instrument delivered, but not recorded, prior to the recording of the judgment; the reason being that only the true or actual interest of the debtor can be sold by the sheriff.