The provisions of the bankruptcy act, preventing an insolvent from giving or the creditor from securing preferences for preexisting debts, apply not only to mortgages and transfers voluntarily made by the debtor, but also to those preferences which are obtained through legal proceedings, whether the lien dates from the entry of the judgment, from the attachment before judgment, or, as in some states, from the levy of execution after judgment. But the statute was not intended to lessen rights which already existed, nor to defeat those inchoate liens given by statute, of which all creditors were bound to take notice, and subject to which they are presumed to have contracted when they dealt with the insolvent.
Liens in favor of laborers, mechanics, and contractors are of this character; and although they may be perfected by record or foreclosure within four months of the bankruptcy, they are not created by judgments, nor are they treated as having been 'obtained through legal proceedings,' even when it is necessary to enforce them by some form of legal proceeding. The statutes of the various states differ as to the time when such liens attach, and also as to the property they cover. They may bind only what the plaintiff has improved or constructed; or they may extend to all the chattels of the debtor, or 'all the property involved in the business.' Re Bennett, 82 C. C. A.531, 153 Fed. 673.
In some cases the lien dates from commencement of the work, or from the completion of the contract. In others, prior to levy they are referred to as being dormant or inchoate liens, or as 'a right to a lien.' Re Bennett, 82 C. C. A. 531, 153 Fed. 677; Re Laird, 48 C. C. A. 538, 109 Fed. 554. But the courts, dealing specially with bankruptcy matters, have almost uniformly held that these statutory preferences are not obtained through legal proceedings, and therefore are not defeated by § 67f, even where the registration, foreclosure, or levy necessary to their completion or enforcement was within four months of the filing of the petition in bankruptcy.
Similar rulings have been made where the landlord has only a common-law right of distress. Re West Side Paper Co. 89 C. C. A. 110, 162 Fed. 110, 15 Ann. Cas. 384. This is often referred to as a lien, but it is 'only in the nature of security.' 3 Bl. Com. 18. The pledge, or quasi pledge, which the landlord is said to have, is, at most, only a power to seize chattels found on the rented premises. These he could take into possession and hold until the rent was paid. Doe ex dem. Gladney v. Deavors, 11 Ga. 84. But before the distraint the landlord at common law has 'no lien on any particular portion of the goods, and is only an ordinary creditor, except that he has the right of distress by reason of which he may place himself in a better position.' Sutton v. Rees, 9 Jur. N. S. 456, 1 New Reports, 464, 8 L. T. N. S. 343, 11 Week. Rep. 413. A right fully as great is created by the Georgia statute here in question. For while giving the owners of agricultural lands a special lien on the crops, there was no intention to deprive the proprietor of urban and other real estate of the lien for rent which there, as in other states, is treated as an incident growing out of the relation of landlord and tenant.
The Code (§ 2787) expressly 'establishes liens in favor of landlords.' It (§ 3124) gives them 'power to distrain for rent as soon as the same is due.' It declares (§ 2795) that landlords 'shall have a general lien on the property of the tenant liable to levy and sale . . . which dates from the levy of the distress warrant to enforce the same.' It is true that prior to levy it covers no specific property, and attaches only to what is seized under the distress warrant issued to enforce the lien given by statute. But in this respect it is the full equivalent of a common-law distress-the lien of which is held not to be discharged by § 67f. Re West Side Paper Co. supra; Austin v. O'Reilly, 2 Woods, 670, Fed. Cas. No. 665.