Boorman v. Wisconsin Rotary Engine Co.

Lyon, J. I. It was clearly the purpose and intention of the parties to the lease or agreement, to give the firm of Boorman & Co. a lien for their advances upon all the property of the company which came to the possession of the firm pursuant thereto. That such purpose and intention was fully accomplished by the execution of the agreement, we cannot doubt. By the terms of the instrument, the firm was to retain possession of such property until the advances made by it should be repaid. A lien is defined to be simply a right to possess and [212] retain property until some charge attaching to it is paid and discharged. 1 Story’s Eq. Jur., § 506. The tenure by which the firm held the property is in the nature of a pledge for the repayment of the advances. The right of a person in whose favor a lien exists, whether on real or personal property, to maintain an action in equity to have the amount of the lien determined, and to enforce payment thereof by a sale of the property, or otherwise, is too well settled to be questioned. Hence it seems very clear that Boorman & Co., who have a lien upon the property held by virtue of such agreement, may maintain this action, which is an action in equity to have the amount of their lien determined, and to enforce payment thereof by a sale of the property subject to such lien. II. The judgment of the defendant Mattice is a valid claim against the engine company, but not against Boorman & Co. That firm never agreed to pay his claim. They only covenanted to pay such debts of the company as they were directed to pay by a majority of the board of directors, and they were not so directed to pay this debt. It is said that two members of the firm were directors, and that their influence prevented the board from giving such direction. Conceding (this to be so, still the facts remain that the board gave no such direction, and, in the absence of it, the firm was under no obligation, legal or equitable, to pay the claim, and had it paid the same would have had no additional lien for the amount thereof on the property. The position of the plaintiff seems to be as it would have been had Boorman & Co., in the first instance, covenanted to pay all indebtedness of the company except the demand of the defendant Mattice. Had such been the covenant, although it might have been a hardship "upon the latter, it will not be denied that Mattice would have no valid claim against Boorman & Co., and that his lien upon the property by virtue of the execution would be subordinate to theirs. And we think such is the case now. We see no escape from the conclusion that [213] the plaintiffs hold or held the possession of the property as security for their advances; and whatever lien the defendant Maitice has obtained thereon must be postponed to the lien of the plaintiffs. It necessarily follows that the plaintiffs are entitled to the relief demanded, except the claim for interest. As ’to the amount of the advances, the learned circuit judge evidently did not consider the proofs ; and-in the view of the case taken by him, it was quite unnecessary that he should. He named $2,000 as the amount of such advances; but it was proved that the same amounted to the sum stated in the complaint. The damages of the plaintiff for the seizure and sale of the property on execution cannot be litigated in this action. The engine company has no interest in that subject. Their rights in respect to the property being established by this action, the plaintiffs must be left .to their appropriate legal remedies to recover such damages, as they may be advised. The judgment must be reversed, and the cause remanded with directions to the circuit court to render judgment for the relief demanded in the complaint, except that no interest on • advances can be allowed. By the Court. — It is so ordered.