Mexal v. Dearborn

Merrick, J.

By purchasing the calf skins, which had been put into his possession to be curried, and by taking a bill of sale thereof, and afterwards, to the time of the commencement of this action, claiming them solely under that title, without having given notice of any other to the defendant when he took them away in discharge of his duty as messenger under the proceedings in insolvency against the vendor, the plaintiff lost or waived the lien which he had previously acquired. A good and sufEdent consideration was paid for the transfer of the property, and as between the parties to the contract the sale was absolute and complete. The ownership thus obtained was entirely inconsistent with the existence of the previous lien. A lien is an incumbrance upon property, a claim upon it which may be maintained against the general owner. But there is no foundation upon which he who owns the whole can create a special right in his own favor to a part. The inferior or partial title to a chattel necessarily merges in that which is absolute and unconditional, when both are united and held by the same individual. This is a general consequence. But in the present instance, it is obvious that the parties extinguished, and intended to extinguish, the lien which had been previously created upon the calf skins ; for the value of the work and labor which had previously been bestowed upon them by the vendor was by their express agreement made part of the consideration of the sale. After such a transaction the rights of the parties were wholly changed. The vendor could no longer assert any claim to the property, and the workman had none against his employer. His debt had been paid, the property had become his own, and a lien upon it in his own favor thereby rendered both needless and impossible.

But the result is the same if the facts upon which the ruling excepted to in the superior court was made are considered in another aspect. The law will not allow a party to insist upon and enforce in his own behalf a secret lien upon personal property after he has claimed it unconditionally as his own, and has thereby induced another to act in relation to it, in some manner affecting his own interest, as he would, or might, not have done if he had been openly and fairly notified of the additional ground of claim. It would be fraudulent in him to practise such concealment to the injury of others; and to prevent the possibility of attempts so unjust becoming successful, the law implies that an intended concealment of that kind is of itself a waiver of the lien. The authorities cited by the counsel for tlm defendant, not less than its intrinsic reasonableness, fully warrant the ruling to which the plaintiff objected. Exceptions overruled.