(dissenting).
Finding myself unable to concur in the opinion prepared by Mr. Justice Moss, I shall attempt to set forth as briefly as possible the reasons for my dissent. The exceptions of the appellant really raise only one question, which is whether there was any legal obligation on the part of the respondent to pay the damages of the claimants to the extent that he did.
It is, of course, well settled that Section 45-551 of the Code, under the facts of this case, makes the automobile itself liable for the damages, which liability may be enforced in an action in rem. Tolbert v. Buick Car, 142 S. C. 362, *191140 S. E. 693; Merchants & Planters Bank v. Brigman, 106 S. C. 362, 91 S. E. 332. It was said in the last cited case that, “the machine is made liable, not the owner, but the machine.” The quoted language is, of course, quite correct in that the Code section imposes no personal liability against the owner over and above the loss of his automobile, or, in practical effect, its value at the time of its seizure under the lien created by the statute. However, to this extent the Code section does impose a legal liability upon the owner of the automobile.
The Code section imposes a lien upon the automobile. “In its most general significance a lien is a charge upon property for the payment or dicharge of a debt or duty.” 33 Am. Jur. 419, Liens, Section 2. The foregoing concise definition of a lien is substantiated by innumerable cases collected in 25 Words and Phrases, “Lien”, 361, et seq.
Thus, it seems to me that the establishment of a lien upon the automobile by the statute creates a legal debt or duty on the part of the owner of the automobile to pay and satisfy the claims to the damaged parties to the extent of either the automobile itself or its value at the time it is seized under the lien.
Here, the value of the automobile at the time of its seizure under the liens does not appear in the record. However, it is stipulated that its value prior to its theft was eight hundred fifty dollars, and it is certainly a reasonable inference that it was worth at least eight hundred dollars at the time of its seizure under attachment or else the respondent would not have paid that much for its release. In any event, no exception on the part of the appellant raises any question as to the value of the automobile at the time of seizure. The appellant’s only contention, properly before the court on this appeal, is that under the circumstances here the respondent was not legally obligated to pay anything. As I see it, the manner of respondent’s payment is immaterial in consdering his legal obligation. The judgments of the claim*192ants, being in the aggregate in excess of the value of the automobile, left the respondent in the position of being legally liable to either surrender his automobile -or to pay, as he did, its value. In either event, he was legally obligated to pay out the equivalent of eight hundred dollars.
In my view, the contention of the appellant here can only be sustained by construing the contractual provisions strictly in favor of the appellant, contrary to our well established rule that the terms of an insurance contract prepared by the insurer must be construed liberally in favor of the insured. Carolina Veneer & Lumber Co. v. American Mut. Liability Ins. Co., 202 S. C. 103, 24 S. E. (2d) 153.
The effect of the “no action” clause of the policy on this controversy, if any, is not properly before us as no exception on the part of the appellant raises this issue. Moreover, it was not passed upon in the lower court. Even if it were properly before us, it should be pointed out that in the case of Pharr v. Canal Insurance Co., 233 S. C. 266, 104 S. E. (2d) 394, a similar provision was construed by this court as being for the benefit of the damaged party. Moreover, here the amount of the obligation to pay on the part of the respondent, if any, has been determined both by stipulation and by a judgment, although the judgment was not ágainst the insured personally. The controversy before us on this appeal does not involve any question as to the amount, it only involves the contention of the appellant that respondent was not legally obligated to pay anything.
For the foregoing reason, I would affirm the judgment of the lower court.