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and effect that existed by common-law liens where the possession
was delivered : Beall v. White, 94 U. S. 382. But the exercise
of such statutory rights will not be extended beyond the powers
plainly given : Cairo ^ St. Louis Ry. Co, v. Watson, 85 111.
531 ; Tucker v. Shade, 25 Ohio St. 355 ; and this rule applies to
municipal liens : Wilson v. Allegheny City, 79 Penn. St. 272.
To secure the rights conferred by a lien given by statute, its pro-
visions must be complied with : Hardin v. Marble County, 13
Bush 58.

Maritime Liens, — A discussion of this branch of the subject is
rendered unnecessary by the publication of the article on maritime
liens, the conclusion of which immediately precedes this article,
and to which the reader is referred.

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Lien by Contract — The right to create a lien by contract when
none existed by law, is unquestionable : Gregory v. Morris 96
U. S. 619. The effect of an express antecedent contract between
the parties is to prevent an implied lien arising inconsistent with
the terms of the contract : Stevenson v. Blakelock, 1 M. & Selw.
535 ; and it seems that when a lien by contract is relied upon, a
lien at common law may be available if the contract is negatived :
Jackson v. OummingSy 5 Mees. & Wels. 842.

Lien on after-acquired Property ; Chattel Mortgage, — To render
effectual at law a provision in a chattel mortgage which is intended
to be a lien on after-acquired property, the lien claimant must,
after the property has been acquired by the mortgagor, obtain the
possession thereof: Chapin v. Cram^ 40 Me. 561; Rowan v.
Sharps Rifle Manf. Co,, 29 Conn. 282 ; Titus et ah v. Mahee
et al, 25 111. 257 ; Rowley v. Rice, 11 Mete. 333; Carrington v.
Smithy 8 Pick. 419 ; Jones v. Richardson, 10 Mete. 481 ; Moody
v. Wright, 13 Id. 17 ; Barnard v. Eaton, 2 Cush. 294 ; Codman
v. Freeman, 3 Id. 306 ; Chesley v. Josselyn, 7 Gray 489 ; Henshaw
V. Bank of Bellows Falls, 10 Cush. 568 ; Chynoweth v. Tenney,

10 Wis. 397 ; Farmers Loan ^ Trust Co. v. Commercial Bank,

11 Id. 207 ; Bryan v. Smith, 22 Ala. 53!4 ; Hunt v. Bullock,
23 111. 320 ; Single v. Phelps, 20 Wis. 398 ; Congreve v. EvetU,
10 Exch. 298 ; Hope v. Hayley, 5 E. & B. 830 ; Gale v. Bumell,
7 Q. B. 850 ; Lunn v. Thornton, 1 C. B. 379 ; Robinson v. Mc-
Dowell, 5 W. & S. 228 ; Williams v. Briggs, 11 R. I. 476. Such a
mortgage is considered as an executory agreement which operates as
a license, authority or power, revocable in its nature, until the
creditor is put into possession of the property at the time or after
it comes into existence or is vested in the debtor. As soon as
that new intervening act has intervened, the lien of the creditor
becomes perfect, and in the absence of statutory regulations, pre-
vails over the liens of subsequent executions: McCaffrey v. Woodin,
65 N. Y. 459.^

Such is the rule at law. Equity, however, regards such a mort-
gage as sufficient to charge the property when acquired, and with-

* In Michigan, a chattel mortjjage intended to bind after-acquired property, is
held to be binding as between the parties to the mortgage, and also as to third par-
tics having notice ; the intervening act of the mortgagee is not requisite to i)erfect
his lien : American Cigar Co, v. Foster^ 36 Mich. 368 ; Robson v. Michigan Centred
Railroad Co., 37 Id. 70.

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out the intervening act of the mortgagee, with an equitable lien,
or as creating an equitable title in it in favor of the mortgagee
against the mortgagor; and some of the cases maintain that such
is the rule against attaching creditors, especially when they have
actual notice of the mortgage : Holroyd v. Marshall^ 10 H. L.
Cas. 191 ; Mitchell v. Winslow, 2 Story 680 ; Pennock v. (7oe,
23 How. 117; Oalveston Ry. v. Cawdrey, 11 Wall. 459; United
States V. Orleans Ry. Go.y 12 Id. 362; Butt v. Ellett, 19 Id.
544 ; Smithurst v. Edmundsy 14 N. J. Eq. 408 ; Seymour v.
Oanandaigua ^ Niagara Falls Ry. Co., 25 Barb. 284. The
principle governing these decisions is, that the mortgage, though
inoperative as a conveyance, is operative as an executory contract
which attaches to the property when acquired, and in equity trans-
fers the beneficial interest to the mortgagee, the mortgagor being
held as a trustee for the former, in accordance with the familiar
principle that equity considers that done which ought to be done.
The rights of parties in property subject to a lien by contract,
is entirely a matter of intention of the parties ; and the intention
must be ascertained from the terms of the contract: Read v.
Fairbanks, 13 C. B. 692. And when subject to the foregoing
rule, the law is settled that when materials are delivered to
a mechanic or manufacturer to be made into a chattel and
returned, the completed article belongs to the party who furnished
the materials ; and the rule is the same when repairs are made
upon a chattel, the original substance still constituting the princi-
pal portion, and the article retaining its identity : Bahcoek v.
Gill 10 Johns. 287 ; Foster v. Pettibone, 7 N. Y. 433 ; Pulcifer
V. Page, 32 Me. 404 ; Eaton v. Lynde, 15 Mass. 242 ; Stevens
V. Briggs, 5 Pick. 177. The mechanic may retain the property
by virtue of his lien, and maintain an action for his services.
But when the mechanic agrees to manufacture a certain article
from his own materials, or even to provide the principal part
thereof, the title is said to be in the mechanic until the thing is
finished and delivered : Atkinson v. Bell, 8 B. & C. 277 ; Gregory
V. Stryker, 2 Denio 628 ; Merritt v. Johnson, 7 Johns. 473 ; Mc-
Conihe v, N. Y.^ErieRy. Co., 20 N. Y. 495 ; Hesser v. Wilson,
36 Iowa 152.

III. Liens are General or Particular. — General liens are
claimed in respect of a general balance of account. They are
founded on custom or special contract; they are stricti juris,

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and are deemed encroachments on the common law, and are not
favored : Taylor v. Baldwin^ 10 Barb. 628 ; Houghton v. Mat-
thews,, 3 Bos. & Pull. 485. A lien, however, is sustained when
it promotes public policy : Wilson v. Q-uyton^ 8 Gill 215.

A particular lien on another's property is the right to retain
it for the debt which arises on account of labor bestowed upon,
or expense incurred in respect to, the identical property. T^he
right was given by the common law, on the ground of public
policy, to persons engaged in certain kinds of business. At the
present time the right is given to all persons who take property
in the way of their trade or occupation for the purpose of bestow-
ing labor, care or expense upon it. The general rule is that one
who bestows his labor on a thing, whether his labor is viewed as
that of an ordinary mechanical employee, or that of an agent, has
the right to retain the thing until he is paid for his labor and
expenses incurred by virtue of Kis employment. But a sub-agent,
as a journeyman employed by a contractor, sustains no personal
relation to the principal owner; and, while the contractor may
acquire a lien on property in his charge for the expense of the
employment of the mechanic who has performed the labor, the
mechanic acquires no lien.

IV. Incidents of the Right. — By common law a " lien" gives
merely the right to retain possession : Holly v. Huggeford^ 8 Pick.
73. It gives no title, and therefore a sale cannot be made, unless
by express contract. The right, such as it is, is superadded to
the holder's right to recover for his services by action : Doane v.
Russell^ 3 Gray 382. The right cannot be taken on execution,
because an officer can seize only what he can sell ; if a sale should
be made it would destroy the right : Legg v. Uvans, 6 Mees. &
Wels. 36; Kittridge v. Sumner^ 11 Pick. 50. Under a lien
created by an attachment, subject to the rights of the lien claimant,
the owner may make an absolute or a conditional sale of the pro-
perty : Bigelow v. Wilson^ 1 Pick. 483 ; Denny v. Willard, 11 Id.
519 ; Fettyplace v. Dutch, 13 Id. 388 ; Calkins v. Lockwood, 17
Conn. 164 ; Arnold v. Brown, 24 Pick. 89 ; Wheeler v. Nichoh,
32 Me. 233. The court cannot make an order that the property
shall be delivered to the plaintiff, for it is in the legal custody of
the officer : Blake v. Shaw, 7 Mass. 505 ; nor can it be sold by
the officer till after judgment and execution : McKay v. Harrower^

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27 Barb. 463. The rights acquired by such lien are in no way
superior to those which the defendant had in the property at the
time when the attachment was made, except in cases of collusion
and fraud. No interest subsequently acquired by the defendant
in the property will be affected by the attachment: Crocker v.
Fierce, 31 Me. 177.

As a general rule a lien is merged in a purchase of the property
by the person who holds possession under his lien. But where
subsequent to the giving of the lien, the owner has lost the power
to sell, as by committing an act of bankruptcy, the purchase being
in itself inoperative, will not divest the lien by way of merger,
for the title of the property subject to the lien will pass to the
assignees : White v. Gainer, 2 Bing. 23. A lien acquired under
an illegal contract if an executed one may be good; as one
arising under usury laws if they impose a penalty but do not
invalidate the contract; or a contract made in violation of Sunday
laws : Scarf e v. Morgan, 4 Mees. & W. 270. A lien though lost
when the property is parted with, will revive upon an agreement
expressly made, or by virtue of an usage, when the property is
returned by the owner: Spring v. Insurance Co., 8 Wheat. 286.
But such revival is subject to any encumbrance which inter-
mediately, while the property was in the owner's hands, attached
to it: Perkins v. Boardman, 14 Gray 481. Whether a special
lien for work or outlay on a particular article can thus be revived
depends upon usage, or the intention of the parties: Johnson v. The
McDonough, 1 Gilpin 101 ; Robinson v. Larrabee, 63 Me. 116.
A lien is not forfeited if the lien-holder who had power to sell
intrusts the property to the debtor for the purpose of making
a sale: Thayer v. Dvnght, 104 Mass. 254. Nor is the lien lost
by temporarily loaning the property to the debtor : Hutton v.
Arnett, 51 HI. 198.

Joseph H. Vance.

Ann Arbor, Mich.

(7\)ht continued.)

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Supreme Court of Missouri,


A iDarried woman, though possessing a separate ' estate, can make no contract
bmding herself personally, or on which she or her personal representatives can be
sacd at law.

King y. MUtalbergery 50 Mo. 183, overruled.

A note made by a married woman, while she was a feme covert and possessed
of a separate estate, is not a debt against her for which her personal representative
can be sued, nor is it such a debt as can be allowed in the probate court against
the general assets of the estate in course of administration.

When a married woman, hanng a separate estate, dies, it ceases to be such, and
stands like any other property she may havcovned. One to whom she has incurred
«n obligation while married has no right to satisfaction of bis debt out of any otlier
of her property \^hich is subject to the debts of her general creditors ; while the
latter, equally with the special creditor, have a right to resort to what was her
separate property for payment of their demands.

Where a married woman, possessed of a separate estate, died pending a suit in
the circuit court to charge such estate with a note executed by her while married,
the suit was properly revived against her heirs. The proper decree of the court,
where the finding is for the plaintiff in such case, stated in the opinion.

A note executed by the ancestor cannot, without proof of its execution, be read
in evidence against the heirs against whom the suit has been revived, where the
Utter stand upon an answer made by their guardian den3ring all the allegations of
the petition.

Appeal from Greene county.

The opinion of the court was delivered by

Henry, J. — This was a suit originally against Harriet and
Patrick R. Smith, her husband, and Robert, as trustee of the
said Harriet, wherein it was sought to charge the separate estate
of Mrs. Smith with the payment of the balance of a note executed
by her, her husband and her said trustee, payable to the plaintiflF.
Mrs. Smith died while the suit was pending, and after defendants
had answered, each admitting the execution of the note, and the
husband and wife alleging her coverture when the note was exe-
cuted ; that she received no consideration for her signature ; that
it was procured by fraud on the part of the plaintiff; that it was
not voluntarily executed by Patrick, and that Harriet signed by
compulsion of her husband, to which plaintiff was a party, and
that she did not intend to charge her separate estate with pay-
ment of the note. Robert's answer admitted his execution of the
note as trustee of said Harriet. In February 1875, plaintiff filed

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a replication to this answer, denying all its defensive allegations.
Subsequently, Harriet died, and this suit was revived against her
heirs-at-law, and George Hubbard was appointed their guardian
ad litem, and as such filed an answer, denying all the allegations
of the petition, to which no replication was filed. The cause was
taken from the Circuit Court of Newton county, where it origi-
nated, to Greene county, by change of venue, where on a trial at the
October Term 1877, defendant had judgment, from which plain- •
tiff has appealed. On said trial plaintiff read as evidence those
parts of the answer of the original defendants admitting the exe-
tion of the note, the note itself, a deed conveying the property in
question to Robert as trustee for the separate use, &c., of Harriet
Smith, and proved that she had no other estate, and that there
had been no administration of her estate. No objection was made
to the admission of any of the evidence; and the judgment must
have been based upon the conclusion that the Circuit Court had
no jurisdiction of the cause, Mrs. Smith having died while it was
pending. In other words, the argument made here must have
prevailed in the Circuit Court, that after the death of Mrs. Smith
the plaintiff had a legal demand which he could have presented
for allowance in the Probate Court, or that the administrator of
her estate, instead of the heirs, was the proper party, even if the
Circuit Court could retain, because it had once acquired, jurisdic-
tion. The question is therefore presented whether the plaintiff
had a claim against Mrs. Smith or her property of which the Pro-
bate Court had jurisdiction. As to the precise nature of the obli-
gation of a feme covert who had a separate estate when it was
incurred, the authorities are not agreed, but are in inextricable
confusion. It is well settled in this state that if she execute a
note, and nothing to the contrary is expressed, the creditor may,
by a proceeding in equity, have it satisfied out of her separate
property : Whitesides v. Cannon^ 23 Mo. 467. But it is not a lien,
or, strictly speaking, a charge upon the property, nor does it bind
her personally. All that can be said of it is that it is an anoma-
lous obligation, neither binding her nor her estate, general or sep-
arate, but only constituting a foundation for a proceeding in equity,
by which her separate property may be subjected to its payment ;
and, until a decree to that effect is rendered, it is neither a lien
nor a charge upon that estate. If she owns, in addition to her
separate property, other property in which she has no separate

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estate, even where a court of equity enforces payment of the obli-
gation out of the separate estate, it will not, for any deficiencies
of the separate estate, allow a resort to her other property ; but
the proposition urged hero is that, after her death, that becomes
a personal obligation which, when entered into, was no obligation
at all. Except with respect to her separate property, the obliga-
tion was a nullity both at law and in equity ; and at law, even the
ownership by her of a separate property gave it no validity what-
ever. At law, she is, during her coverture, generally incapable
of entering into any valid contract to bind either her person or
her estate. In equity, also, it is now clearly established that she
cannot by contract bind her person or her property generally.
The only remedy allowed will be against her separate property.
The reason of this distinction between her separate property and
her other property is that, as to the former, she is treated as a
feme sole, having the general power of disposing of it ; but as to
the latter, all the legal disabilities of a feme covert attach upon
her: Story's Eq., sect. 1397.

In Sockett v. Ray, 4 Bro. C. C. 485, the Master of the Rolls
said : " It is argued that, supposing her a feme sole, she could do
the act; there the single woman can act, because she can bind her-
self personally ; but is there any contract that this married woman
could enter into that would bind her after the termination of the
coverture ? If she gave a bond, could she be sued upon it after
the coverture? Certainly not. A man or a single woman, as
they can bind themselves personally, may bkid their executors and
administrators; but it is not so of a married woman." In Aylett
V. Ashton^ 1 Myl. & C. 106, which was a suit to compel the
specific performance of an agreement made by a married woman
with respect to her separate estate. Lord Cottenham, referring to
Francis v. NozzeU, 1 Mod. 268, said : '* It was there decided, and
clearly in conformity with all previous decisions, that the court has
no power against a feme covert in personam, but that if she has
separate property the court has control over that separate property.
In all cases,'^ however, the court must proceed in rem against the
property. A feme covert is not competent to enter into contracts
80 as to give a personal remedy against her. Although she may
become entitled to property for her separate use, she is no more
capable of contracting than before ; a personal contract would be
within the incapacity under which a feme covert labors.'*

Vol. XXX.— 21

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If tne contract of a married woman could, with respect to her
personal property, be treated as a personal obligation even in
equity, we see no reason why it could not be specifically enforced
to the extent of that property ; and that it was refused by Lord
CoTTENHAM in Aylett v. Ashton, supra^ conclusively shows that
it was not regarded by him as a personal obligation in any sense
whatever. In Parker^ JSxr, v. Lambert's Adm'rs, 31 Ala. 89,
it was held that " a married woman, owning a separate estate by
deed, living apart from her husband by agreement with him, could
not at common law make any contract upon which either she or
her personal representatives could be sued at law.'* The contrary
was held by this court in King v. Mittalherger, 50 Mo. 184, but
no authority was cited in support of the decision there announced,
and the argument is far from satisfactory. This case was followed
by the Court of Appeals in Horton v. Ransom^ 6 Mo. App. 19,
and Staler/ v. Howard^ 7 Id. -S80 ; but as King^ v. Mittalherger
is in conflict with the general current of authority, both in the
United States and in England, and with the principle upon which
the separate property of a feme covert is charged in equity, we are
constrained to recede from the doctrine therein announced, and to
bring this court in harmony with the better considered adjudica-
tions elsewhere.

It follows from the foregoing premises, that when Mrs. Smith
died the note in suit was not a debt against her for which her per-
sonal representative could be sued, and it could not be allowed in
the Probate Court against the general assets of her estate in course
of administration.

It is no demand against her general estate. It could not be
allowed as such. • It was not a lien upon her separate estate. The
right of the plaintiff to satisfaction out of her separate property
is a creation of equity, recognisable nowhere else, and enforceable
nowhere else. The Probate Court could in no manner adjudicate
the demand, not because it has not jurisdiction of equitable as
well as legal demands against the estate, but by reason of the
special* provisions regulating the exercise of the jurisdiction con-
ferred upon that court.

All demands are to be classed in first, second, third, fourth,
fifth or sixth class, and to be paid in proportion to their amounts,
and no demand of any class can be paid until all previous classes
are satisfied. One holding the obligation of a feme covert would

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have no right to any other property of her estate, and if his
demand were placed in either of the classes, he might, if the pro-
visions of the statute were strictly observed, get satisfaction of his
demand out of the general property, to the exclusion of other
creditors who, as to that property, have a preference over him.
Specific provisions are made for those cases in which demands are
liens upon any of the property of the testator or intestate, and
none of these provisions applies to the plaintifi'^s claim, for he has
no lien. He has no demand against the estate for which he could
sue Mrs. Smith's executor or administrator, and has no remedy
except that to which he has resorted. Thus far we encounter no
diflSculty ; but here one occurs which should be met by an amend-
ment of the administration law, inasmuch as in this progressive
age it is not unusual for married women to execute promissory
notes and incur other pecuniary obligations, and to hold property
for their sole and separate use.

When afeme covert dies, her separate property ceases to be such,
and stands upon the same footing as any other she may have
owned. While her death does not extinguish the right of one to
satisfaction of an obligation incurred by her while a feme covert,
out of what was her separate property, he has no right to satisfac-
tion out of any other of her property, which is subject to the debts
of her general creditors if she has any, and she may have such,
while they, equally with the special creditors, have a right to
resort to whatever was her separate property for payment of their
demands. If, then, the court should find for plaintiff, what judg-
ment shall it render? If it decree the sale of this property for
payment of plaintiff's demand, and it should thereby be paid, and
there should be other creditors, either general or special, he would
obtain a preference to which he is not entitled over either class.
Nor can the courts determine in this cause whether there are or
not other creditors ; for unless parties to the proceedings, if there
were any. they would not be bound by such adjudication. It has
been ascertained in this case that Mrs. Smith was possessed of no
other property ; but it has not been, nor could it in this proceed-
ing be, conclusively ascertained that she owed no other debts. The
Circuit Court cannot bring other creditors in and take charge of
the administration of the estate by allowing demands against it,
and making final distribution. That jurisdiction has been con-
fided to the Probate Court : Titterington v. Hooker, 58 Mo. 593.

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That there is here probably but one creditor, and only this specific
property, cannot change the principle or warrant an assumption
by the Circuit Court of probate jurisdiction. Therefore, all that
this court can do, if it finds for the plaintiff, is to enter a decree
charging this property with plaintiff's demand — with directions to
the Probate Court of the proper county, where letters of adminis-
tration on the estate shall have been granted, to have the demand
paid out of the property, if no other creditors of the estate appear
within the time allowed by the administration law. If other
creditors appear, and have claims allowed, then this demand of
plaintiff shall be placed in the class to which it would be entitled
under the administration law if it were an ordinary demand against
the estate. There being no other property, it stands upon the

Online Libraryclergyman of the church of englandThe American law register, Volume 21 → online text (page 20 of 109)