Allen v. Spencer , 1 Edm. Sel. Cas. 117 ( 1845 )

The Circuit Judge:

I think the jury erred in finding that the plaintiff was the lessee of the attic. The only evidence to support that finding is an expression of a wish by the plaintiff that Gray, when subletting to the defendants, would reserve the attic; but whether it was to be reserved to Gray & Co., or to the plaintiff, the case does not show, nor does it show whether any reservation was in fact made by Gray & Co. On the other hand, it is very clearly made out, by the testimony of the landlord; that on the first of August the old lease to Gray & Co. was regarded on all hands as abrogated by the death of Gray, and the insolvency of the firm; and a new letting was made, whereby, after parceling out the offices to plaintiff and another, the whole residue of the building, including the attic, was let to the defendants. They were, therefore, from the first of August until the following Hay, the lessees of the attic, and entitled to their lien for the storage.

It is, however, insisted by the plaintiff that the lien of the defendant was destroyed; and in this regard it appears to me the verdict of the jury was clearly against the charge of the court and against law.

It is true that possession is essential to a lien, but that need not be always the direct and actual possession of the creditor; that of his agent, servant, or the keeper of a warehouse acting under Ms authority, is regarded as his own. (McFarland v. Wheeler, 26 Wend. 474.) And in cases where , the party is deprived of his possession by force or fraud, or against his will, the lien is not lost. (Grinnel v. Cook, 3 Hill, 493) So too as between the claimant and the owner, the lien may continue even after the possession is changed. (26 Wend. 474.)

It is only between the claimant and third persons that con-tinned possession is essential, because possession by the owner might enable him to defraud others ignorant of the lien. As between the owner and the holder of the lien, possession is by no means essential, except when, by surrendering the possession, the claimant can be fairly understood to have surrendered his lien; and then the question is not whether he has yielded his possession, but has he voluntarily surrendered his lien. Has he agreed to surrender it?—for until he has, it will not he in the power of his debtor to deprive Mm of it.

In tMs case the question is between debtor and creditor alone, and much of the law in regard to the continuance of possession cited is therefore inapplicable. The question for the jury was whether the defendants had so far voluntarily parted with the possession of the property as to warrant the conclusion that they intended thereby to abandon their lien. Of tMs there is no evidence whatever, hut on the other hand the evidence is very clear, that the plaintiff obtained possession without the knowledge or consent of the defendants. It would he novel and extraordinary to allow a debtor, by possession thus obtained, to divest the creditor of Ms jnst claims.

The verdict, then, being against law and the charge of the court, must be set aside and a new trial granted, the costs to abide the event.