S1591. Notwithstanding an agreement to the contrary, a lien or a contract for a lien transfers no title to the property subject to the lien. This provision is in accordance with the law of this state in respect to mortgages of real property (Kort- contracts $1592. All contracts for the forfeiture of property Certain subject to a lien, in satisfaction of the obligation void. secured thereby, and all contracts in restraint of the right of redemption from a lien, are void,' except in the case specified in section 945.2 1 This is a well settled rule in relation to a mortgage (see The rule also applies to a pledge (Code Napoleon, This beneficent principle doubtless governs in all cases of liens, and the commissioners have felt no hesitation in giving it in this place as a universal rule. They have omitted the qualifying words of some of the decisions, which imply that an agreement in restraint of redemption may be made subsequently to the execution of a mortgage, inasmuch as such a qualification, if it is a correct statement of the law (which is at least extremely doubtful), is Creation of lien does not imply certainly not desirable. Of course a mortgagor may sell his property to the mortgagee, but the transaction must be a genuine sale, and not a forfeiture. The propriety of this exception will appear by reference to the section specified. $1593. The creation of a lien does not of itself personal imply that any person is bound to perform the act obligation. for which the lien is a security. Extent of lien. Existence of lien does not affect creditor. Holder of lien not Culver v. Sisson, 3 N. Y., 264; Salisbury v. Philips, 10 Johns., 57; Hone v. Fisher, 2 Barb. Ch., 569; Scott v. But an acknowledgment of indebtedness, in any instru- 1594. The existence of a lien upon property does not of itself entitle the person, in whose favor it exists, to a lien upon the same property for the performance of any other obligation than that which the lien originally secured. This is the American rule, in regard both to a mortgage and a pledge (Jarvis v. Rogers, 15 Mass., 389), and while the rule is said to be otherwise in England, in respect to liens upon personal property (Story Eq. Jur., 1034), though not as to mortgages of real property (id.), yet the principle of the text is the one which seems most accordant with justice. The civil law, however, applied the opposite rule to mortgages and pledges of every kind (Code Napoleon, 2082). $1595. The existence of a lien, as security for the performance of an obligation, does not affect the right of the creditor to enforce the obligation without regard to the lien. See on this point, as to a pledge, Story on Bailm., § 315; $1596. One who holds property by virtue of a lien entitled to thereon, is not entitled to compensation from the tion. owner thereof for any trouble or expense which he compensa incurs respecting it, except to the same extent as a borrower, under sections 956 and 957. Somes v. British Empire Shipping Co., 8 H. of L. Cas., ARTICLE IV. PRIORITY OF LIENS. SECTION 1597. Priority of liens. 1598. Priority of mortgage for price. 1599. Order of resort to different funds. liens. S1597. Other things being equal, different liens Priority of upon the same property have priority according to the time of their creation, except in cases of bottomry and respondentia. Barry v. Mutual Ins. Co., 2 Johns. Ch., 608. $ 1598. A mortgage given for the price of real property, at the time of its conveyance, has priority over all other liens created against the purchaser. Modified from 1 R. S., 749, § 5. 1599. Where one has a lien upon several things, and other persons have subordinate liens upon, or interests in, some but not all of the same things, the person having the prior lien, if he can do so without risk of loss to himself,' or of injustice to other persons, must resort to the property in the following order, on the demand of any party interested: First. To the things upon which he has an exclusive lien ; Second. To the things which are subject to the fewest subordinate liens ; Third. In like manner inversely to the number of subordinate liens upon the same thing; and, Fourth. When several things are within one of the foregoing classes, and subject to the same number of liens, resort must be had : 1. To the things which have not been transferred since the prior lien was created; 2. To the things which have been so transferred without a valuable consideration; and, Priority (1 for price. mortgage Order of resort to different funds. 3. To the things which have been so transferred for a valuable consideration. See notes to § 1917. ARTICLE V. Right to redeem. Rights of inferior lienor. REDEMPTION FROM LIEN. SECTION 1600. Right to redeem. 1601. Rights of inferior lienor. 1602. Redemption from lien, how made. S1600. Every person, having an interest in property subject to a lien, has a right to redeem it from the lien,' at any time after the claim is due,2 and before his right of redemption is foreclosed.3 Not only the owner of the fee, but also a doweress (Wheeler v. Morris, 2 Bosw., 524; see Kinnoul v. Money, 3 Swanst., 202, note), and any person having an interest in the property (Downe v. Morris, 3 Hare, 394), may redeem. "Kortright v. Cady, 21 N. Y., 343. Brown v. Frost, 10 Paige, 243; North River Ins. Co. v. S1601. One who has a lien, inferior to another upon the same property, has a right: 1. To redeem the property in the same manner as its owner might, from the superior lien; and, 2 2. To be subrogated to all the benefits of the superior lien, when necessary for the protection of his interests, upon satisfying the claim secured thereby. 1 Averill v. Taylor, 8 N. Y., 44; Pardee v. Van Auken, 3 Barb., 535; Burnet v. Denniston, 5 Johns. Ch., 35: see Brainard v. Cooper, 10 N. Y., 356; Van Buren v. Olmstead, 5 Paige, 9; Benedict v. Gilman, 4 id., 58; McKinstry v. Mervin, 3 Johns. Ch., 466; Smith v. Green, 1 Collyer, 555; Fell v. Brown, 2 Bro. C. C., 278. Averill v. Taylor, 8 N. Y., 44; see Robinson v. Ryan, 25 N. Y., 320. Such subrogation is not allowed when unnecessary to the junior incumbrancer, especially if prejudical to other parties (Jenkins v. Continental Ins. Co., 12 How. Pr., 66). But when neces sary, it is allowed. Thus, a mortgagee may redeem from an assessment (Rapelye v. Prince, 4 Hill, 119; Brevoort v. Randolph, 7 How. Pr., 398), or from a lax sale (Burr v. Veeder, 3 Wend., 412; Kortright Cady, 23 Barb., 490; 5 Abb. Pr., 358), or sale under tion from made. $ 1602. Redemption from a lien is made by per- Redemp forming, or offering to perform, the act for the lien, how performance of which it is a security, and paying, or offering to pay, the damages, if any, to which the holder of the lien is entitled for delay. Kortright v. Cady, 21 N. Y., 343. ARTICLE VI. EXTINCTION OF LIENS. SECTION 1603. Lien deemed accessory to the act whose performance it secures. 1604. Extinction by sale or conversion. 1605. Lien not extinguished by lapse of time under statute of 1606. Apportionment of lien. 1607. When restoration extinguishes lien. deemed accessory whose per to the act $1603. A lien is to be deemed accessory to the act Lien A mortgage may be made to secure payment of a sum A tender of the money due upon a mortgage, at any time formance it secures. |