Duncan v. Hawn

Van Fleet, J. An act of the legislature entitled “An act to secure the wages of persons employed as laborers on threshing-machines” (Stats. 188.5, p. 109), provides:

“ Section 1. Every person performing work or labor of any kind in, with, about, or upon any threshing-machine, the engine, horse-power, wagons, or appurtenances thereof, while engaged in threshing, shall have a lien upon the same to the extent of the value of his services.

“Sec. 2. The lien herein given shall extend for ten days after the person has ceased such work or labor.

“Sec. 3. If judgment shall he recovered in any action to recover for said services for work or labor performed, and said property shall be sold, the proceeds of such sale shall he distributed pro rata to, all judgment creditors, who have within ten days begun suits to recover judgments for the amount due them for such work.

“ Sec. 4.- The lien shall expire unless a suit to recover the amount of the claim is brought within ten days after the party ceases work.”

Plaintiff, as assignee of the claims of certain laborers who had performed work of the character provided for in the act with the threshing-machine of the defendants, brought this action within the ten days’ limitation to enforce and foreclose a lien for the value of said labor. The court below gave judgment sustaining plaintiff’s right to the lien and directing a sale of the property for its satisfaction. The defendants appeal. .

The material question involved in the appeal is whether the lien given by the statute passes by the assignment of the obligation it is given to secure, it being conceded that the assignments were sufficient in form to convey any rights which could pass under the law.

There is a conflict in authority from other states as to whether statutory liens of the class created by the act in question pass by assignment of the debt; some of the authorities holding that it is strictly a personal right and dies unless asserted in the hands of the one for [12]whose benefit it is primarily given; while other cases hold in effect that, being given as security for the performance of the obligation, it becomes.an incident which follows it upon assignment.

Whatever may be the rule in other states, in the absence of statutory regulation, it would seem that the code solves the question here presented. Section 2909 of the Civil Code, speaking on the subject of liens in general, declares that “ a lien is to be deemed accessory to the act for the performance of which it is security”; and section 1084 of the same code, relating to the effect of transfer, provides that: “ The transfer of a thing transfers also all its incidents, unless expressly excepted.” The language of section 2909 may be taken as referring to perfected and subsisting liens. It is to be observed that the statute under consideration does not give a mere right to establish a lien, but by its terms ipso facto the cessation of work, there results by operation of the statute a perfected and established lien which subsists for a period of ten days, without the filing of notice, or other affirmative act by the laborer. Under the rulé above declared this lien becomes an incident of the primary obligation — the debt due the laborer — the right to which must be held to pass by assignment of the latter, unless there is something in the act creating it which takes it out of this general rule prescribed by the code. We find no such limitation in the act. It neither in terms nor by implication tends to restrict the right to enforce the lien to the laborer. Its primary purpose is the benefit and protection of the laborer in securing his hire; and it is obvious that this purpose would be largely destroyed by any such restriction.