Argued on rehearing October 8; former opinion adhered to December 10, 1946; second petition for rehearing denied February 11, 1947 ON REHEARING (175 P.2d 794) As stated in our former opinion, the plaintiff in this suit — the judgment creditor and appellant in the companion case ofUlrich v. Lincoln Realty Company — seeks a declaratory decree that plaintiff's deficiency judgment is a lien against the real property redeemed by Roehr, respondent in the companion case, and that a writ of execution issue on such decree and the property in question be sold to satisfy such judgment. The theory on which plaintiff bases his right to invoke the aid of a court of equity appears to be as stated in his complaint, "that the statutes of this state providing for the issuance of execution and the levy thereunder upon real property do not afford an adequate remedy for the right accruing to the plaintiff under said deficiency *Page 408 judgments and under the amendment of 1917 (§ 6-1602, O.C.L.A.)."
We agree with the foregoing statement (see opinion on rehearing this day rendered in Ulrich v. Lincoln RealtyCompany), but we are cited to no authority, and are aware of none, under which the court is empowered to afford such a remedy. In substance, the court is asked to create an equitable lien against the property because the legislature has failed to create a statutory lien. We think that a court of equity has no such power. "Such a lien may be created by an express contract which shows an intention to charge some particular property with a debt or obligation, or it may arise by implication from the relations and dealings of the parties whose interests are involved." 33 Am.Jur., Liens, 427, § 18. See, to the same effect, 4 Pomeroy, Eq. Jur. (5th ed.), 695, § 1234. In this case there were no dealings between the plaintiff and the defendants, and therefore no basis under the principle stated for the claimed lien. And in any event, whatever inherent power a court of equity may have to impress liens on property, as, for example, in some jurisdictions to make a decree for alimony a lien on the husband's real estate (19 C.J., Divorce, 313, § 725), we think it clear that the power to create a lien cannot be drawn from the legislature's failure to provide one. The lien sought here must be given by statute if at all, and it is scarcely necessary to say that the court has no legislative powers and is not authorized to supply deficiencies in a statute.
It follows that the decree of the Circuit Court dismissing the suit was right, and our former decision affirming such decree is, for the reasons hereinabove given, adhered to. *Page 409