A covenant to convey and,settle lands does not give the covenantee a lien ; but was held to do so in case of a covenant to settle lands in lieu of dower ; 3 Bro. Ch. 489 ; 1 Ves. 461.
A court of equity cannot create a lien up on lands to secure a party for a breach of contract, whether under seal or not, there is no agreement for a lien between the parties; Richards v. Lu'mber Co., 74 Mich. 57, 41 N. W. 860.
A bargain and sale of personal accompanied by delivery, divests the ven dor of any lien for payment, unless such lien is secured by chattel mortgage or by agreement between the parties ; Segrist v. Crabtree, 131 U. S. 287, 9 Sup. Ct. 687, L. Ed. 125.
An equitable lien upon real estate does not result from the sale of personal prop erty, even though It is used in the erection of buildings thereon ; Slack v. Collins, 145 Ind. 569, 42 N. E. 910.
Where the owner of an equity of redemp tion in mortgaged lands agreed to charge a certain lot with the payment of two mort gages held upon other property, and agreed to execute proper mortgages on said land, or to pay off the mortgage, already given, the agreement created an. .equitable in favor of the mortgagees named in. the instrument; 26 Can,, S,. C. R. 41. , The bolder of a mere equitable lien can not compel the owner of the legal estate to account for the rents profits received by him while occupying the premises ; White house v. Cargill, 88 Me. 479, 34 Atl. 276.
The holder of the legal title to land can not, by private sale to a corporation having the right of eminent domain, defeat inchoate liens which would otherwise attach as the result of legal proceedings ; Farrow v. Ry., 109 Ala. 448, 20 South. 303.
Maritime Liens. Maritime liens do not in clude or require possession. The word lien is used in maritime law, not in the strict legal sense in which we understand it in courts of common law, in which case there could be no lien where there was no posses sion, actual or constructive ; but to express, as if by analogy, the nature of claims which neither presuppose nor originate in posses sion ; 22 E. L. & Eq. 62. See Ben. Adm. § 271. A distinction is made in the United
States between qualified maritime liens, which depend upon possession, and absolute maritime liens, which do not require nor depend upon possession ; Cutler v. Rae, 7 How. (U. S.) 729, 12 L. Ed. 890; 21 Am. Law. Reg. 1. The sole essentials of admiral ty in a suit in rem, for breach of contract are that the contract is mari time and that the property proceeded against is within the lawful custody of the court. The existence of a maritime lien is not ju risdictional, but is a matter going to the merits; The Resolute, 168 U. S. 437, 18 Sup: Ct. 112, 42 L. Ed. 533. To sustain a mari time lien there must be, either in fact or by presumption of law, a credit of the ship; Empire Warehouse Co, v. The Advance, 60 Fed. 766.
The shipper of goods has a lien upon the ship, for the value of the goods sent, which can be enforced in admiralty ; Howland v. Greenway, 22 How. (U, S.) 491, 16 L. Ed. 391; Vose v. Allen, 3 B]atchf. 289, Fed. Cas. No. 17,006 ; and, generally, every act of ,the master binds the vessel, if it be done within the scope of his authority ; 1 W. Rob. 392; The Freeman v. Buckingham, 18 How. (U. S.) 182, 15 L. Ed. 341; where the possession of the master is not tortious, but under a color of right; Jackson v. Julia Smith, 6 McLean 484, Fed. Cas. No. 7,136. This does not apply to contracts of material men with the master of a domestic ship; .1 Conkl. Adm. 73 ; and act must have been within the scope of the master's employment ; The Free man v. Buckingham, 18 How. (U. S.) 182, 15 L. Ed.:341. See 1 C. Rob. 84. This lien follows the ship even in the hands of a pur chaser, without notice, before the creditor has had a reasonable opportunity to enforce his lien ; The Rebecca, 1 Ware 188, Fed. Cas. No. 11,619. the master borrow money for the ship's necessity, the lender Vas a lien on the ship for the amount; Descadillas V.
Harris, Green]. (Me.) 298; The Menomi nie, 36 Fed. 197. A sale of the vessel by the master through necessity cuts out the lien of the shipper of the cargo in the vessel; The Amelie, 6 Wall. (U. S.) 18, 18 L. Ed. 800.