This is a complaint in the nature of a declaratory judgment to determine the priority between the plaintiff, as a mechanics' lien judgment creditor, and the defendants, who claim title through a judicial sale under a levy execution and sale of certain realty upon a general judgment, involving the same real estate.
The question to be determined is whether a sale on execution under a general judgment, at which sale the general judgment creditor purchases the properties against which a mechanics' lien judgment was entered, prior to the entry of the general judgment, extinguishes the lien of the mechanics' lien judgment, where no levy or execution has been issued under the mechanics' lien judgment.
The facts of this matter have been stipulated. Briefly, on August 23, 1956 the plaintiff filed mechanic's notices of intention against 6119 Roosevelt Avenue and 4030 King Avenue, Pennsauken, New Jersey, on property owned by Walter S. Riedinger, and Henrietta Riedinger, his wife. On April 12, 1957 plaintiff filed a lien claim against these properties, which lien claim was extended by written agreement, and on November 25, 1957 a judgment was entered
in the lien claim proceedings generally against the builder, Wynnewood Homes, Inc., in the sum of $2,546.91 plus costs, and specially against the property at 6119 Roosevelt Avenue in the amount of $1,095.37, and specially against the property at 4030 King Avenue in the amount of $1,451.54, and the judgment provided that execution may issue pursuant to N.J.S. 2 A:44-109. The lien claim was subordinate to a mortgage in the face amount of $16,500 on both properties.
On March 11, 1958 the defendants Michael J. Fanelli and Henrietta Fanelli, his wife, recovered a general judgment in the amount of $1,420, plus $75.97 costs, against the property owners, Walter S. Riedinger, Sr. and Henrietta Riedinger, his wife, which judgment was for a deposit paid on one of the properties. On March 18, 1958 the defendants Fanelli caused a writ of execution to be issued on their judgment and the levy was made on both of said properties and, after advertising as required by law, the properties were sold by the Sheriff of Camden County to the Fanellis on May 9, 1958, subject to the mortgage.
The plaintiff made no levy and issued no execution on its mechanic's lien judgment, and the plaintiff had no actual knowledge of the sale by the Sheriff of Camden County to the Fanellis.
There are generally three kinds of liens recognized in our judicial system: (1) common law, (2) equitable, and (3) statutory. There is, of course, no common-law lien under which the plaintiff could claim any right of priority for the payment of materials furnished by it in the construction of the homes on the lands in question, nor is the plaintiff entitled to an equitable lien by reason of supplying the materials to the builder contractor. It becomes apparent, therefore, that the lien, if any, to which plaintiff was entitled must be a statutory lien and must arise as a result of N.J.S. 2 A:44-64 et seq. , commonly referred to as the Mechanics' Lien Act. The plaintiff, if it is entitled to any priority, is so entitled by virtue of said act, and is entitled also only to a statutory lien.
Generally, common-law liens pertained exclusively to personal property, and normally required for their continued efficacy a continuance of possession in the lienor. Over the years, however, the word has acquired much more extended significance and is now generally recognized as a charge upon a particular piece of property, including realty, for the payment or discharge of a particular debt or duty in priority to the general debts or duty of the owner. 33 Am. Jur., Liens, p. 421.
A lien has been defined as follows:
"Derivatively, the word 'lien' means a 'string,' a 'tie,' a 'bind.' Century Dictionary. Stansbury v. Patent Cloth Manufacturing Co. , 5 N.J.L. *433. In its pure legal sense it 'implies that one is in possession of property of another, and that he detains it as security for some demand which he has in ...