Title 44 — LIENS

Source: CivC 1877, § 1710; CL 1887, § 4334; RCivC 1903, § 2030; RC 1919, § 1535; SDC 1939, § 39.0111.

A lien is a charge imposed upon specific property by which it is made security for the performance of an act. Source: CivC 1877, § 1697; CL 1887, § 4321; RCivC 1903, § 2017; RC 1919, § 1522; SDC 1939, § 39.0102.

The existence of a lien on 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. Source: CivC 1877, § 1709; CL 1887, § 4333; RCivC 1903, § 2…

One who holds property by virtue of a lien thereon is not entitled to compensation from the owner thereof for any trouble or expense which he incurs respecting it, except to the same extent as a borrower under §§ 43-37-11 and

Any mortgagor or grantor of a security interest or other lien of personal property who, while the lien of his mortgage, conditional sales agreement, or security agreement remains in force and unsatisfied, willfully destroys, conceals, sells, or in any manner disposes of or materi…

A lien document containing a written provision securing the repayment of future advances, whether or not the lien creditor is obligated to make such future advances, has priority over all subsequent encumbrancers to the extent of all sums advanced, with interest thereon, with the…

Liens are general or special. A general lien is one which the holder thereof is entitled to enforce as security for the performance of all the obligations or all of a particular class of obligations which exist in his favor against the owner of the property. A special lien is one…

The general statutes relating to liens apply to all liens including mortgages and pledges unless from the context relating to any of them a different intention plainly appears. Source: CivC 1877, § 1701; CL 1887, § 4325; RCivC 1903, § 2021; RC 1919, § 1526; SDC 1939, § 39.0101.

A lien is created: (1) By contract; or (2) By operation of law; but no lien arises by mere operation of law until the time at which the act to be secured thereby ought to be performed. Source: CivC 1877, §§ 1702, 1703; CL 1887, §§ 4326, 4327; RCivC 1903, §§ 2022, 2023; RC 1919, §…

A lien may be created by contract, to take immediate effect, as security for performance of obligations not then in existence. Source: CivC 1877, § 1705; CL 1887, § 4329; RCivC 1903, § 2025; RC 1919, § 1530; SDC 1939, § 39.0104.

An agreement may be made to create a lien upon property not yet acquired by the party agreeing to give the lien, or not yet in existence. In such case the lien agreed for attaches from the time when the party agreeing to give it acquires an interest in the property and to the ext…

No title to the property is transferred by a lien or contract for lien notwithstanding any agreement to the contrary. Source: CivC 1877, § 1706; CL 1887, § 4330; RCivC 1903, § 2026; RC 1919, § 1531; SDC 1939, § 39.0107.

All contracts for forfeiture of property subject to a lien in satisfaction of the obligation secured thereby and all contracts in restraint of the right of redemption from a lien are void. Source: CivC 1877, § 1707; CL 1887, § 4331; RCivC 1903, § 2027; RC 1919, § 1532; SDC 1939, …

The creation of a lien does not of itself imply that any person is bound to perform the act for which the lien is security. Source: CivC 1877, § 1708; CL 1887, § 4332; RCivC 1903, § 2028; RC 1919, § 1533; SDC 1939, § 39.0109.

Other things being equal, different liens upon the same property have priority according to the time of their creation. Source: CivC 1877, § 1711; CL 1887, § 4335; RCivC 1903, § 2031; RC 1919, § 1536; SDC 1939, § 39.0112.

A mortgage given for the price of real property at the time of its conveyance and the vendor's lien for unpaid purchase price of real property have priority over all other liens created against the purchaser subject to the operation of the recording law. Source: CivC 1877, § 1712…

In all cases where no other provision is made by statute for giving public record notice of any claim of lien on personal property any person claiming such lien may give public record notice thereof by sworn statement executed in writing stating: (1) The names and addresses of th…

Before filing such lien statement, the person claiming the lien shall mail to the property owner at his last known post office address, by registered or certified mail, a copy of such lien statement and the post office receipt for such mailing shall be attached to the lien statem…

The sworn statement of such claim of lien together with post office receipt for mailing as required in § 44-2-4 may be filed in the office of the register of deeds of the county in which the property is located at the time of such filing and the register of deeds shall file and i…

Certified copies of the lien statement as filed may be filed in any other county of the state with same effect as certified copies of chattel mortgages are filed and shall be filed and indexed accordingly. Source: SDC 1939, § 39.0124.

Such liens may be assigned and satisfied of record the same as chattel mortgages. Source: SDC 1939, § 39.0124.

A lien claim or statement mailed and filed in accordance with the provisions of this chapter shall from the time of its filing give constructive notice of its contents and a certified copy of such claim or statement filed in any other county of the state shall likewise give const…

Any person who shall file such a lien statement without reasonable grounds to believe that he is entitled to such lien or who shall file a statement containing any willfully made false substantial statement and who shall fail upon demand to execute and deliver to the property own…

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 prope…

When several things are within one of the classes described by § 44-3-1 and subject to the same number of liens, resort must be had: (1) To the things which had not been transferred since the prior lien was created; (2) To the things which have been so transferred without a valua…

Redemption from a lien is made by performing or offering to perform the act for the 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. Source: CivC 1877, § 1716; CL 1887, § 4340; RCivC 19…

Every person having an interest in property subject to a lien has a right to redeem it from a lien at any time after the claim is due and before his right of redemption is foreclosed. Source: CivC 1877, § 1714; CL 1887, § 4338; RCivC 1903, § 2034; RC 1919, § 1539; SDC 1939, § 39.…

One who has a lien inferior to another upon the same property has a right to redeem the property in the same manner as its owner might from the superior lien. Source: CivC 1877, § 1715, subdiv 1; CL 1887, § 4339, subdiv 1; RCivC 1903, § 2035, subdiv 1; RC 1919, § 1540 (1); SDC 19…

One who has a lien inferior to another upon the same property has a right 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. Source: CivC 1877, § 1715, subdiv 2; CL 1887, § 4339, …

Where a holder of a special lien satisfies a prior lien for his own protection he may enforce payment of the amount so paid by him as a part of the claim for which his own lien exists. Source: CivC 1877, § 1700; CL 1887, § 4324; RCivC 1903, § 2020; RC 1919, § 1525; SDC 1939, § 39…

Whenever any mortgage, pledge, or other lien of any kind has been satisfied either by payment, foreclosure, or other legal means, the holder of such lien shall, within thirty days of satisfaction, deliver a sworn satisfaction to the debtor. However, immediately upon satisfaction …

When any mechanics', miners', laborers', or materialmen's lien on real or personal property or on the proceeds of public improvement contracts, lien for the service of sires, seed lien, crop production lien, or vaccination of livestock lien under the provisions of chapters 5-22 ,…

The owner of the property to be released by undertaking, or a person substantially affected thereby or having a substantial interest in the lien to be released, shall cause to be filed with the officer having control or custody of the record of the lien, his affidavit, or the aff…

The person filing an affidavit pursuant to § 44-4-2 shall cause to be filed with the officer an undertaking in an amount of not less than twice the amount of the lien executed by at least two sureties, resident freeholders of this state, or a qualified corporate surety, to the ef…

The officer before whom the proceedings are held may charge a fee in accordance with subdivision 7-9-15(3) upon the filing of the affidavit and undertaking and notice, and the documents shall be filed or recorded in the same manner as the notice of lien. Certified copies of the d…

The person presenting the release from lien by undertaking shall serve a copy of the affidavit and undertaking, together with a notice designating the time when and the office where the application will be made for release of the lien, on the lien claimant or the lien claimant's …

At the time and place specified in the notice for the hearing, the lien claimant or his agent or attorney may except to the sufficiency of the surety, and thereupon the sureties may justify before the officer named in the original notice. If the sureties, or others substituted, f…

If no exception is taken to the sufficiency of the sureties, or if the sureties justify as provided in § 44-4-6 , and if the officer having control of the record of the lien approves the undertaking the lien shall be discharged of record by an entry on the margin of the record th…

Sureties on the bond shall be released and exonerated unless action is commenced on the claim on which said lien was based within one year from the date said lien was discharged. Source: SL 1966, ch 124 , § 4.

A lien is to be deemed accessory to the act for the performance of which it is security, whether any person is bound for such performance or not and is extinguishable as any accessory obligation. Source: CivC 1877, § 1717; CL 1887, § 4341; RCivC 1903, § 2037; RC 1919, § 1542; SDC…

The voluntary restoration of property to its owner by the holder of a lien thereon dependent upon possession extinguishes the lien as to such property unless otherwise agreed by the parties and extinguishes it, notwithstanding any such agreement, as to creditors of the owner and …

The sale of any property on which there is a lien toward satisfaction of the claim secured thereby, and in case of personal property, its wrongful conversion by the person holding the lien, extinguishes the lien thereon. Source: CivC 1877, § 1718; CL 1887, § 4342; RCivC 1903, § 2…

The partial performance of an act secured by a lien does not extinguish the lien upon any part of the property, even if it is divisible. Source: CivC 1877, § 1720; CL 1887, § 4344; RCivC 1903, § 2040; RC 1919, § 1545; SDC 1939, § 39.0122.

A lien is not extinguished by the mere lapse of the time within which an action could be brought upon the main obligation under the statutes of limitation of actions. Source: CivC 1877, § 1719; CL 1887, § 4343; RCivC 1903, § 2039; RC 1919, § 1544; SDC 1939, § 39.0121.

One who sells real property has a special or vendor's lien thereon, independent of possession, for so much of the price as remains unpaid and unsecured otherwise than by the personal obligation of the buyer. Source: CivC 1877, § 1801; CL 1887, § 4436; RCivC 1903, § 2148; RC 1919,…

One who pays to the owner any part of the price of real property under an agreement for the purchase thereof has a special or vendee's lien upon the property independent of possession for such part of the amount paid as he may be entitled to recover back in case of failure of con…

The liens described by §§ 44-6-1 and 44-6-2 are valid against everyone claiming under the debtor, except a purchaser or encumbrancer without notice, in good faith, and for value. Source: CivC 1877, § 1803; CL 1887, § 4438; RCivC 1903, § 2150; RC 1919, § 1691; SDC 1939, § 39.0601.

Where a buyer of real property gives to the seller a written contract for the payment of all or part of the price, an absolute transfer of such contract by the seller waives his lien to the extent of the sum payable under the contract, but a transfer of such contract in trust to …

One who sells personal property has a special lien thereon, dependent on possession for its price, if it is in his possession when the price becomes payable and may enforce his lien in like manner as if the property was pledged to him for the price. Source: CivC 1877, § 1804; CL …

This chapter applies only to federal tax liens and to other federal liens notices that, under any act of Congress or any federal regulation adopted pursuant to any act of Congress, are required or permitted to be filed in the same manner as notices of federal tax liens. Source: S…