Aiken & Co. v. Steamboat Fanny Barker

Boats and Vessels — Waiver of Lien — Note—Practice.—A party having a lien upon a boat and taking a note for the amount thereof, may prosecute a suit against the boat in his own name to the use of his assignee, if he have the note ready at the trial to be delivered up and cancelled.

Appeal from St. Louis Circuit Court. The claim was properly presented in the name of Aiken & Go. Neither the account itself nor the lien growing out of it was ever attempted to be transferred, but the note, which is merely the evidence of the existing debt, and which the boat and vessel act (§ 52, p. 759) permits the lien holder to take without affecting his right of lien, was transferred to a third person by delivery, who, as the evidence tended to prove, took it on the faith of the lien. Plaintiffs produced the note in court to be cancelled, which is not only prima facie evidence of their ownership of the note, but as against the boat is conclusive, for it matters not whether the plaintiffs bought the note back after its transfer, or whether it was donated or otherwise voluntarily and gratuitously surrendered to them ; for no one will question the right of the transferee to make what disposition he pleases of his title to the paper. The title to the note, then, was back in the plaintiffs, and the court will not inquire what consideration they paid for it, or whether they have made a contract touching the ultimate disposition of the proceeds to be recovered in this proceeding — Page & Bacon v. Lathrop, 20 Mo. 589. This lien was not extinguished by the mere fact of the transfer of the note. “ Gen. Jackson,” Sprague’s Dec. p. 554, it is held in reference to a maritime lien, that “ an assignment of his claim by the creditor is not a waiver of lien ” — St. Bt. Charlotte v. Kiugsland, 9 Mo. 66. The right to a mechanic’s lien may be transferred without prejudice to the lien — Goff v. Papin, 84 Mo. 177. The question of the assignability of a mechanic’s lien was directly before the court. I. The statute gives a right only to creditors “having a lien” — G. S. p. 756, § 21. The evidence shows that when the claim was filed the plaintiffs had no lien; they had sold it. II. The action was not prosecuted in the name of the real party in interest, nor did the claimants show themselves to be within the exceptions — G. S. 651, § 2 & 3. III. The assignment and sale of the lien destroys its existence as a lien demand. The lien was a personal privilege, incapable of being transferred to a third person and thence enforced as a lien. It is only given to the party who does the labor or furnishes the supplies — Pearsons v. Tucker, 86 Me. 384; Roberts v. Fowler, 3 E. I). Smith, 632. The analogy of the admiralty law holds, by which liens are personal and peculiar — Newbury’s Adm’rs, 432, 449 ; 8 Pick. 73, 76 ; 1 Md. Oh. D. 220 ; 10 Hump. 371. IY. The taking of a negotiable promissory note in settlement of the demand, and passing it away and getting the money for it, waived or destryed the lien — St. Bt. Charlotte v. Lumm, 9 Mo. 63 ; Ramsey v. Allegre, 12 Wheat. 611; 29 Vt. 165 ; Harris v. Schr. Kensington, 8 Am. Law Reg. 144,155; 2 Wallace, Jr. 327.