ory is preserved. Such states are known as title jurisdictions. In the other states, generally speaking the newer ones, the old title theory has been abandoned and mortgages are considered liens. However, the law as to mortgages in title jurisdictions and in lien jurisdictions has more points of similarity than of difference. It is absolutely essential even for those in lien states to understand title mortgages and their history. There are many incidents also of mortgages which are peculiar to them, and which do not concern other liens. It is advisable, therefore, in spite of the fact that mortgages have undergone a development which has gone far to assimilate them to liens, to treat them separately, and no further reference will be made. to them in this article even as to those states in which mortgages are liens in theory as well as in fact. While then logically the law of real security, meaning by that security over property real or personal, as distinguished from personal in which an obligation is secured by a person, such as a surety, includes mortgages, pledges, and other liens, only pledges and liens in the narrow sense are here considered. Briefly, at least in title jurisdictions, a main distinction is that the title passes to a mortgagee; while it always remains in the person making a pledge or in him over whose property a lien is acquired.

4. Creation of liens and capacity of parties.—A lien may be created by contract or may arise by rule of law. It is a right in or over property which comes into being in connection with a contract or

It

with an obligation of a contractual nature. may well be that the parties did not actually contemplate a lien. But, as in many other cases in the law, certain obligations are considered implied terms of certain contracts or certain relationships, unless the parties expressly stipulate otherwise; so it is with liens. Certain liens may be conceived of either as implied terms in contracts, or as rights attached by rule of law to certain relationships, the latter conception, perhaps, better covering some cases. If a lien arises by rule of law, it is at most a conditional right and does not come into operation until the time at which the act to be secured ought to be performed. But by contract, express or implied in fact, a lien may be created to take effect immediately as security for the performance of obligations not now in existence. Where an attempt is made to create a lien by express contract the usual rules as to contractual capacity apply, but where it arises by operation of law it can plainly be seen that it may affect property of persons not of full capacity.

5. Subject matter of liens.-Any property, real or personal, may be the subject matter of a lien, though, as will be seen later on, certain kinds of liens may attach to certain kinds of property only. As in the case of sales and mortgages, only property in existence or potentially so can be subject to a lien, and property not owned by the person attempting to give a lien cannot, with certain exceptions to be hereafter noted, be bound. But there is no reason, as no question of the passing of title

to property as in the case of sales or mortgages is involved, why, if a lien is attempted to be given on property not yet in existence or not yet acquired, the lien should not attach immediately upon the property coming into existence or into the ownership of the person purporting to give the lien, provided the other circumstances for the acquisition of the particular lien in question are present. In a number of states there are code or statutory provisions limiting the right to give liens on future interests, as prohibitions against liens on wages to be earned or crops to be grown.

6. Liens are accessory rights.-A lien is an accessory right. It cannot stand by itself. It is security for some other right, rises to protect such right and falls with it. When the debt is paid or the act performed the lien is gone.1

By express agreement a lien may be created to secure the debt of a third party. Or by a rule of law the owner may find his property burdened with an obligation created by another without the owner's consent. For example, the common law gives an innkeeper a lien on a guest's baggage although it may turn out to belong to a third person. The owner of the goods does not owe the hotel bill, but he cannot get his property without paying it. In fact the existence of a lien does not necessarily imply that any person is bound to perform the act for which the lien is security. A lien is not a personal obligation itself, nor need such an obligation accompany it. For instance, a statute may give a lien to 1 Faber v. Wagner, 10 N. D. 287, 86 N. W. 963.

a person who picks up an animal wandering on the highway, and who feeds and takes care of him. But suppose the expenses of caring for such animal exceed its value. The finder cannot hold the owner for the excess nor for any amount in case the owner desires to abandon the animal. The only remedy of the finder in such a case is to take advantage of the statutory provisions authorizing a sale after certain formalities such as advertisement, and in that way to recover as much as the animal will bring. The right to which the lien is accessory in this case is the statutory right to compensation for the services rendered, provided the owner claims the animal.

7. Liens protect particular obligations.-It may seem superfluous to some readers to call attention here to certain fundamental conceptions which if not already understood could hardly be missed in a study of liens, but mention of them now may add clarity to the discussion and may prevent erroneous ideas from being formed. We are all familiar with the layman who thinks if he has goods belonging to someone else in his possession and the person to whom they belong owes him something, that, no matter what the nature of the claim, he has a right to hold the goods until his claim is paid. And students of the law even who have given the subject of liens only a superficial consideration have been known to possess the notion, on account of the great variety of liens, that a person can get a lien on almost any property of his debtor that he can lay his hands on, for almost for almost any claim. Such ideas are very

far from the law. If such were the case it would be unnecessary to enumerate the different kinds of liens and to explain by whom, for what claims, and over what property, they may be acquired. For instance, persons of a certain class, say shoemakers, may be accorded by law the right to acquire liens. It does not follow that a shoemaker has a right to hold a pair of shoes brought to him to repair for any claim he may have against such customer. The claim must be for repairing shoes of the customer, in fact for charges on the very pair of shoes which the shoemaker holds. Then assuming the claim is for repairing the customer's shoes which are still in the shop, the shoemaker would have no lien on an umbrella left by the customer at the shop. His lien is on shoes only.

In each case it is necessary to ascertain how the law defines the class of persons entitled to the lien, the charges protected by it, and the property subject to it. Generally speaking, it will be found that the claims protected have reference to the occupation of the person given the lien, and the property which may be subjected to the lien is that upon which the services are rendered or is in some way connected with those services. But a knowledge of the general plan upon which liens are constructed does not do away with the necessity of considering the several requisite elements in each different lien. 8. Division of subject. Thus far, in this article, the general nature and common characteristics of liens have been considered. After a classification of liens which will be a key to the order of treat