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California.

The codes and statutes of California, as amended and in force at the close of the twenty-sixth session of the Legislature, 1885 : with notes containing references to all the decisions of the Supreme Court construing or illustrating the sections of the codes, and to adjudications of the courts of oth online

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Online LibraryCaliforniaThe codes and statutes of California, as amended and in force at the close of the twenty-sixth session of the Legislature, 1885 : with notes containing references to all the decisions of the Supreme Court construing or illustrating the sections of the codes, and to adjudications of the courts of oth → online text (page 100 of 131)
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is entitled to conti'ibution and to salvage:
Uihsonv. Phila. Ins. Co., 1 Binn. 405."

Seamen's I'/ayes: See sees, 2048-20G(>.



520



TitLl: XIV, Chap. V.] EESPOXDEXTIA. §§ 3029-3040

3029 . Pr orify of bottom ry liens.

Sec. 3029. Of two or more bottomry liens on tlie same subject, the latter in
date has preference, if created out of necessity.

This -vvell-settled principle rests upon tlio ami tliey are really concurrent, they will be

f round tlmt llie lust bond saved tlie sliip: 1 pa'd /j;-o ra/a, tliough they bear ditl'inviit actual

ii'.-sons on Ship. & Adm. l(il. dates: Vhe E'-'ti'T, 1 lloh. A.lni. 17;^, 170; La

If the property will not j^ay all the bonds, Coutstancia, 4 Notes of Cases, 515-518.



CHAPTER V.

EESiOXDENTIA.
30S6. Ppspoiulentia, what.

Sec. 803G. Piespondentia is a contract by wliicli a cargo, or some p.art thereof,
is hyi:)0thecated as security for a loan, the repayment of which is dcpciideut on

mariUnje risks.

Respondentia. — The master of a vessel gen- 7'Ae GrafitncHnp, 3 RoK 240; Thf Padcet, 3

erally haii uoihin!; to do with the cargo of his Mason, 255; The U. S. Iti-^. Co. \. S'-ntt, I

vesacl between tlic lading and delivery; but if Johns. lOG; FonUunc v. Vol. Ins. Co., 9 Id. 29;

a dire necfssity — fjreater than that striii"ei!t Scarle v. Scoi'ei, 4 Johns. Cii. 222; Amer. Ins.

necessity mentioned iu note to section .SC20, Co. v. Co.s/cr, 3 I'aige, 3.2;'.; J'ossy. .'^hip Active,

ante — exists, lie may sell it, or pait of it, oi' 2 Wasli. 21^\: From commissioners' note.

pled.'C or hypotiiccate it, by means of a rtspou- See Maltlaud w The Allnvl'ic, Newb. Adm.

dentia boml, in order to raise money for the 514; Des'y's Ship. & Atim., sec. 113; Parsons

common beuelit: Parsou on j\lerc. Law, o8C; on Sliip. & Adm. 105.

8037. Reapnndeulia by owner.

Sec. 3037. The owner of cargo may hypothecate it upon respondentia, at any

time and place, and for any lawful purpose.

Like bottomry, it may be made by the sliould be expended in the purtihase of good.s, or

owner of the goods at home, Avitliout any nei'cs- in any way about them: Coiiard v. Alltinl'ic Ins.

sity cither beiore or during tlie voya_,e; and it Co., I Pet. 380; Franklin lua. Co, v. Lord, 4

ma}' be so made to take up a former bond; and Masou, 248.
it is not necessary that the money so raised

3038. Pe.<2)o)idt'niia by master.

Skc. 3038. The master of a ship may hypothecate his cargo upon respon-
dentia only in a case in which he would be authorized to hypothecate the ship
and freightage, but is unable to borrow sufficient money thereon for repairs or
supplies which are necessary for the successful accomplishment of the voyage;
and he cannot do so, even in such case, if there is no reasonable prospect of
benefiting the cargo thereby.

Master s aiitliorifcy. — A part or tlie whole not be given to include cargo not actually oa

of tlie c.'.rgo may be hypothecated, accoriling to b(Kird: The Ednwid, Lush. .)7.

the necessity of t;ie case: The Lord Coc'irdin', The same rule of necessity applies here as ixx

IW. Rob. o!2; S. (J., 2 Id. 320; Thp U'<niwi:i, 3 the case of bottomry.

Id. 198; Justin v. litdlam, 1 Salk. 34; but it can- Master may ssll cargo: Sec. 2379, ante,

3030. Rale <f hylered.

Sec 303'J. The provisions of sections thirty hundred and twenty-two and

thirty hundred and twenty-nine apply e(iually to loans on respondentia.

Marine interest, in order to be entitled to, the lender must run the marine risk: Thomdikt
V. Stum-, 1 1 Pick. 187.

3040. Ohliijdlioiis of ship-owner.

Six. 304;>. The owner of a ship is bound to repay to the owner of its cargo

all which the latter is compelled to pay, under a contract of respondentia made

by the master, ia order to discharge its lien.

To the s\n\3 eJeot: Puncan v. lienxon, 1 Ivlaster personally responsible: Soc. 23S3,
I'xcii. 537; and see also sec. 2385, aide. ante.

621



3046



OEJJGATIOXS,



[Div. Ill, Paet IV,



CHAPTER VI.

OTHER LIENS.
3046. Lirn of seller of real property.

Sec. 304G, One who sells real property lias a vendor's lien thei'eon, inde-
pendent of possession, for so much of the price as remains unpaid and unsecured
otherwise than by the personal obligation of the buyer.

Vendor's implied lien. — This is a cloctiine chase money due the vendor: ^ffirqiiat v. Mar-

ii.sh courts of cliancery, and has been (/iiat, 7 How. Pr. 417; Cha//muu v. Al/rahnins,

lieieiit judges upon dili'ercnt grounds; Gl Ala. lOS; see McKiUip v. McKdlip, 8 liarb.

to the doctrUie that it is a "nat- bo'l.

Execution. — The equitable lien held by the
Vendor of real estate after absolute conveyance
thereof is not subject to levy and .sale on exe-
cution; at least, if the purciiaser at such sale

_ acijuires any title it is only an cr|uity, to hi en-

Ihat it rests upon the supposeil intention <jf forced by apiiropriate proceedings in eijuitj';

the p:ii-ties. All of these theories are open to but the indebtedness secured by the lien may

objections: Jones on Mortgages, sec. 190. This be sold under execution: lioss v. JItinUeu, 5Q

doctiine of the vendor's lien for the jiurchase Cal. 313.

money has been adopted in upwards of half '• Cut it seems, at least in California, that all

the United States: Id., sec. 191. Mr. Jones, kinds of clioses in action may be levied upon

Mo:tgages, sec. 191, note, says: "It is to be and sold, except contingent and complicated

noticed that within a few years several states contracts, of which the true amount and value

have abolished this implied lien, and that cannot be ascertained:" Freeman on Execu-

strong expressions of disapprobation of the doc- lions, sec. 112; and see "Attachment," "Ti-

trine liave been used in others. It may be tie," infra.

doubted, therefore, whether this doctrine will Jlomeslend. — Land on which a vendor's lien

long survive." As inconsistent with the general exists may become a homesteail, but tlie home-

[lolicy prevailing in this country to make all stead right is subordinate to the lien: MiUpti-

matters of title depend upon record evidence, drij v. Rei ly, 13 Cal. 7<3; WiUiams v. Young,

see Ciuef Justice Marshall's remarks in Bayhy 17 Cal. 403.

v. Greenleaf. 7 Wiieat. 46, 51; pi-r Treat, J., in Price. — This lien exists only where land haa



of the K
bused by
some adhenii
iiial eipiity:" Sparks v. lles^, 15 Cal. 136;
Elimn v. JacLxon IF. Co., 12 Id. 542; others
considering it as an implied trust: Bait v.
Wilxoi), 28 Id. (332, existing in the vendee in
favor of the vendor; and others sugtresting



Conovar v. Warren, 1 Gilin. 498, 502; Yancey
V. Mauck, 15 Gratt. 300, In the United States
courts tlie doctrine has never been affirmed, ex-
ce]it where established by the local law of tlie
different Lstates: Bayley v. Greenleaf, 7 Wheat.
46; McLeurn v. McLellan, 10 Pet. G25, G40;
Chilton V. Bra'xlen, 2 Black, 45S. From the
nature of this "silent " lieu, it is often brought
into contact with other rights, at least equa ly
equitable, ami the inevitable result follows tlsat
the cases are ccjnflicting, and sometimes irrecon-
cilable even in the same state. "This is emi-
nently a subject of case law. To a large degree
each case is a law unto itself and unto no other
case. The in(juiry in every case is wlietlur
there are other equities superior to this lien, or



been sold for money, and cannot be used to en-
force other obligations: ih'KlUlp v. MrKdlip,
8 Baro. 552; nor for unliquidated and uncer-
tain demands: Iliscork v. A'ortoii; Jones on
Mortg;iges, sec. 194; but see Dabolx v. Hull, 43
Barb. 26, and McDole v. Purdy, 21) Iowa, 277;
nor for a covenant or ai^rcemeut: Ar in v.
Brown, 44 N. H. 102; Chase v. Feck, 21 N. Y.
5S1; Chapman v. Beards'ey, 31 Conn. 115;
Ilare v. Van Dusen, 32 Bub. 92. But a note
payable iu certificates of indebtedness is se-
cured by the lien equally as if pa3'able in
monvy: Deanon v. Taylor, 53 Miss. G'J/.

Price must be money, paid or promised:
Beii:a:nin on Sales, sec. 2.

Waiver and loss of tli3 lien. — Personal



whether it has bjcn waived by any act of the security of the buyer, acceptance of, does not
party claiming it:" Jones on Morttjages, sec. waive the lien: Gouldin v. BucLdew. 4 Cal. 107;
192; see also La^jow v. Bddollet, 12"Am. Dec. Walk r v. Sedgicv-k, 8 Id. 398; Banm v.
262, note. The leading case on this subject is Grijsby, 21 Id. 172; Ilonore v. Bakewi-H, 43
Mac'n-eth v. Symmons, 15 Ves. 329; S. C, 1 Am. Dec. 147; Jones on Mortgages, sec. 198.
Lead. Cas. iu Eq., 4tii Am. ed., 447, and the Extending tiaie on such securicy (Kies not ex-
very learned and extensive note by the Amer- tinguish the lien: Truebody v. Jaro'ison, 2 Cal.
lean editors, 4S1. 269; Aldrid /e v. Dunn, 41 Am. Dec. 224. It
Ciroumstanoes affecting tlae lien.— The has been held that where the vendor brings his
lien is pre-ume 1 to exist in all cases, unless an action at law upon such collaterals, lie should
iatentiiui l)e clearly manifest that it shall not in that action, if at all, unite his equitable



exist: Macrelh v. Si/mmons, 15 Ves. 329; True-
body v. Jacbson, 2 Cal. 260; Clark v. Halt, 7
Paige, oSJ; Wdson v. Lyon. 51 III. 166; Fry v.
Prewett, 58 Miss. 783; Gilinan v. Brou-n, 1
Mason, 191, 213; Gurson v. Green, 1 Johns.



claim for a foreclosure of his lien, the same
tribunal administering both law and equity:
W<dker V. Sedgwick, 8 Cal. 398.

Distinct and independent security. — The silent
lien of the vendor is extinguished wlunexer he



Ch. 308; see Peniingtoa Y. 7rigifins,iii Ca\.(j20; manifests an intention to alwndon or not to

and the burden of repe-ling the presumption look at it. And this intention is manfested by

lies upon the vendee: Id. taking other and independeno security upon

The lieu does not arise in favor of one the same land, or a portion of it, or on other

who advances money to the vendee at his laud, although such security or mortgage is

request, for the payment of part of the pur- void: Jjuut v. Water)7Mn, 12 Cal. 301; C'a??i-



52-2



Title XIV, Chap. VI.]



OTHER LIENS.



3046



den V. Vail, 23 IJ. G^S; Grifo} r. Blanrhar, 17
Id. 70; Baum v. (■rhj4,ii, 'Jl I<1. 17:.'; WdU v.
Ilarter, 56 Id. 312; see Jones on 2iIortt;a^es,
sec. 207; but see Ai-mstro7i(j v. Boss, 20 N. J.
Eq. 107.

If a mortgage be given upon a part of the
estate jiurchaseil, the inference is that it was
not intended that the rest of it should )je
affected Ijy the lien: Broiciiv. Gilman, 4 Wheat.
255; Phillips v. Sauinle7-son, 1 Siiicd. & M. Ch.
402; F.sh v. IJow'aud, 1 Paige, 20, 30; llasMl
V. Scoll, uG Ind. 50 1. But it the mortgage was
void, this does not invalidate the debt itself,
which was intended to be secured: Shaver v.
B. n. d: A. Co., lOCah 30G.

And a verbal agiecmcnt by the vendee to re-
convey the land to the vendor, if ho does not
pay the purcliase price, docs not ilischarge the
lien: Ga'la<jher v. Mars, 50 Cul. 23.

But this rule of the lien, being discharged by
the acceptance, even, of void security, does
not prevail where tlie vendor is misled by the
fraudulent misrepresentations of the vendee:
Corb V. Fouqeray, 3j Barb. 195, 199; Fouch v.
Wilson, GO ind. 04.

Olh''r indi'peiulent securities: See Jones on
Mortgages, sec. 207. Acceptance of a guaran-
teed note will not discharge the lien: Barms v.
Roulhac, 2 Bush, 39; Tienian v. Thurman, 14
B. Mou. 277. But in general, the acceptance
of the obligation of a tliii'd person, even as a
surety or indorser, is sniiicient: See Baum v.
Orijsbi/, 21 Cal. 172, 175; MacrcLhw Sijmmoiis,
1 Load. Cas. in Erj., 4th Am. cd., 4S5.

Prlra.i faoia evidence of ■waiver. — The ac-
ceptance of a distinct and separate security for
the puT-chase money is jirima facie a waiver of
the vendor's lien, but it is only im^ia facie,
and may be rebutted. In tliis case the plaint-
ili manifested throug^iout an intention lo rely
upon the land as secarit}', and his vendor's lien
was therefore not waived: Remingloii v. Iliu-
gins, 54 Cal. 20; Grijlii v. Blanch n-, 17 Id. 70;
Marshall v. L'hrislma^, 39 Am. Dec. 199. Of
course an agreement not to waive the lien may
be made: Baum v. Grljshu, 21 Id. 172; Dowjh-
aday v. Paine, G Minn. 413. The burden of
proof to repel the presumption of waiver of
course restsupoa tlio verdict: While v. Dowjh-
er!ij. Mart. & Y. 3J9; Brevird v. Sammar, 2
Heisk. 97; and proof that the vendor relied
upon the land as well as U)on such security is
held to be sufficient in rebuttal: Remington v.
Uiggin^, 54 Id. 029; WilUw Ga>/, -iSTox. 433.

ii trauofor of pDrsoaal saourity waives the
lien: Sec. 3J47, i.fr-t.

Trouslar hy V3ad33 to bona fide purcliaser
orincumbranccr di ocliargeslieu : Sec. 3043, infra.

I'lnforoemont ox II3I1.— The vendor's lien is
to be viewed in two aspects:

1. As it exists under a contract or bond to
convey the property, tlu title still remaining in
the vemlor.

2. As it exists after a conveyance of the prop-
erty, the title subsisting in t!ie vendee.

//* the former cn-<e tlic vendor's lien retained
is different from the ordinary lien of a vendor
after convey aico executed. Ilis position is
somewhat similar to tint of a party executing
a conveyance and takin ,' a mortgage back. II3
may in bath cases sues at 1 uv f.)r the b ilaaco of
hij purchase mouc}', or file his bill in equity
for the specific ]icrf(>rmance of the conti'act:
Sparks V. Iless, 15 Cal. ISO; Goic'dfii v. Ihickc-
lew, 4 Id. 107. Mr. Jones says it is a misuse



of terms to call this a vendor's lien, it is so rad-
ically different from the usual lien: Jones on
Moib. -^'Zo; •• vueveudeeuas merely a:i equity of
r^'Vmption in the land: " Id. It is i.ot waived
or lost, as an implied lien is, by accepting other
security: McCaslin \. State, A\lw\. 151; Boze-
man v. Iiey, 49 Ala. 75; .'Strickland v. Somer-
ville, bo Mo. 1G4; Price v. Lnuve, 49 Tex. 74;
Jones on ?,Iortgages, sec. 232.

In the latter case the vendor has parted with
the legal and equitable ti^le, and possesses only
a bare right, not a speoiiic and aljsnlutc charge
u])on the property. It is of no oi)crative force
and effect until established by the decree of a
court of equity: Sparks v. JJiss, 15 U.il. ISO, ffr
Field, J.; Ellison v. Jackson W. Co., 12 Id.
542. The equitable remedy in both may be en-
forced in the first instance and before the
vendor has exhausted his legal reiiieily against
the personal estate of the vendee. In some
states the contrary rule that the legal remedy
must lirst be exhausted prevails: Jones oa
Mortgages, sec. 219. The court can by its
decree, afier determining the amount of the
lien, either direct a sale of the property for
its satisfaction and execution fur any defi-
ciency, or award an execution in the first
place, and a sale only in the event of its re-
turn unsatisfied, as the justice of the case may
re(iuire: Sparks v. //e-s, 15 Cal. IbO. The
term within which payment may be made by
the vendee to extinguish the lien is limited, and
ends alter a sale under a judgment fur the pur-
cliase money: Truebody v. ^acrAso/*, 2 11. 2G9;
but sea Code Civ. Proc, sec. 700. See also an
example of specifically eufurcing a contract for
the sale of realty and at the same time charg-
ing the land with the vendor's lien: Fletcher v.
Motcer, 55 Cal. 119. And for otlier examples
of enforcing the lien of the vendor, see Lake v.
Tebbi'ts, 50 Id. 481.

Attachment. — As a result of the above dis-
tinction, it has been deduced tliat tlie vendor's
lion in the former case is of suliicient force and
effect (Ijcing in effect a mortgage, supra) to
restrain the vendor from taking out an attach-
ment for the unpaid purchase money, under the
section of the Code of Civil Procedure prohibit-
ing such action when the creditor iiolds security
for the debt: Hill v. Grigs'nj, 32 Cal. bj.

While in the latter case the lien is held to
be not of a sufficiently fixed and determined
character to restrain the creditor from resorting
to tlie summary process of attachment: Porter
v. Brooks, 35 Cal. 199, where the court say, page
292: " If it be conceded that the plaintii' had a
vendor's lien of a fixesl and determinate charac-
ter, tlie case would fall strictly within //ill v.
Gri'/<hy, 32 Id. 55. * * * If the plaintiff retained
a vendor's lien under the circumstances, it was
Daly an equita'jlo riglit to resort to t!ie land for
pa.mcnt, wliicli right was liable t) be de-
feated by an alienation or incuaibrauco made
by the vendee to a b/itafi le purchaser." This
ii not sucli a lien as seeurei a debt i:i the sense
of t!ie statute. It is to bj remarked that the
Vendee in this cas3 had conveyed the property
to a tli'rd person before action co nmenced, and
t!i it the court decided in effect tliat under
t'.ijse circumstances the vendor was not bound
to test t'lo bona (ides of t'.ie s de to see whether
his lien still existed or not. But in a concur-
ring opinion Sawyer, C. J., cL-arly distinguishes
the ca;e of Hill v. Grigshy, 32 Id. 33. Sander*
son, J., and Hhodes, J., dissent.



523



§§ 3047, 3048



OBLIGATIONS.



[Div. Ill, Part IV,



Assignment. — It is p;enera1Iy accepted tliat
tliis lieu is not a'^signablo, but h personal to
the vendor: Jones on Mortgages, sec. 212;
Lewis V. Coril/aad, 21 Cal. 17S; Williams v.
Young, Id. 227; AWs v. //einizcn, 3G Id. 313;
Buiim V. Grifju'ri/. 21 Id. 172. But where the
contract cf sale is unexecuted, the vend ir "c;in
assign iiis (^ontraet with the conveyance of the
titici jinci 111 sucli case his assignee will acquire
the samu rights and he subject to the same lia-
bilities as himself:" Id. 172-177, 2'*^'* Field,
C.J.

MisosUaneous question.3. — Where a home-
Btead lias been declared upon the property sub-
bcqueiit to the attaching of the vendor's! lien,
tlie pioperty will be held in subordination to
the ventior's lien. But a sale under execution



on the judgment at law for the purchase money
will nut under such circumstances pass the title,
for such sale passes, if at all, only the legal in-
terest of the homestead declarants, and this
interest is not leviable. Such sale does not pass
the equity of the vendor to have the land .sold,
because such sale is not an enforcement of the
lien. In this case the title would pass only by
regular chancery proceedings to enforce the lien:
WWiams V. Young, 17 Cal. 403; see Al'en v.
Phelps, 4 Id. 256. Where land ij sold under a
decree enforcing a vendor's lien, the title passes
acainst minors who are i-epresented in tlio suit
by their guardian ad litem, and they cannot after
majority maintain ejectment for the laud: J/e-
foux V. H'ebti; 53 Id. 130.



3347. When Iranft/er of contract ivaives lien.

Sec. 304:7. "Where a buyer of real propex-ty gives to the seller a wntten con-
tract for payment of all or j^art of the price, an absolute transfer of such con-
tract by the seller waives his lien to the extent of. the sum payable under the
contract, but a transfer of such contract in truso to pay debts, and return the
surplus, is not a waiver of the lien.



Transfer of contract. — It has been seen
that tlKS lien is not assignable: Sec. 3343, note
"Assignment," niqira; Bnim v. Griij'^liy, 21
Cal. 172; and is extinguished by the transfer
of indebtedness: Hoxs v. //eiiitzeii, 3G Id. 313;
except where the vendor retains the title: Baam

(irifj>:by, suprn.



is made for the benefit of a third person, or ho
is merely a purchaser of the note, there is no
peculiar equity in his favor; bat when the
transfer is for the security or payment of the
vendor's own debt the eipiity continues; the
assignee, in such case, holding the lien as well
for tiie benelitof the assignor as lor himself, is



But where, in a deed conveying land, there subrogated to all his equities:" Joueson Mort-



was a reservation in express terms to the
grantor of a lieu to secure the payment of two

} promissory notes for a part of the price, such
ien is mo.e tlian a vendor's lien; it is, in fact,
an equitable mortgage upon the laud which
passes with the assignment of the promissory
notes: Diugley v. liadkof Ventura, 57 Cal. 4G7.
It has been held that if tiie note cainj back
to the vendor ills lien wouhl revive: Cot'eii v.
JlcO'e'.ee, 54 Miss. 510; liojers v. James, .33
Ark. 77; see Scott v. Alann, 33 Tox. 157, and
iiifra.

*Tran3{3r in trust to pay dsbts.— "The
reason is said to ba that when the assignment



gages, sec. 210; Carlton v. Dackner, 28 Ark.
03; Craiulry v. liim/s, 24 II. 503; Plowman v.
Riddle, 14 Ala. 109; as an assignjieut lor the
beiiCilt of creditors: 11a leek v. Smith, 3 B.irb.
237. 272.

Aiioclisr exseption i3 sometimes al-
lowed. — If the vendor indoroe the note, and
is afterwards obliged to take it up at maturity
upjn the failure of the vendee to [lay, the lien
is held to revive and take effect m if no assign-
ment had been male: Kellif v. Paine, 13 Ala.
371; Tar.ier v. Horner, 23 Ark. 44J; White v.
Wdl'iani'^, 1 Paige, 502; Limey v. Bates, 42
Miss. 307; and iiee supra.



3048. Extent of seller's lien.

Sec. 3348. The liens defined in sections thirty hundred and forty-six and
thirty hundred and fifty are valid against ever}' one claiming under the debtor,
except a purchaser or incumbrancer in good faith and for value.

Cl3:niia3 unier th3 debtor.— Tlie lien ex- 17 B Mon. 082; andagaimt voluntary assignees

ill insolvency who arc also not deemed hoaa^fide
pure '.lasers: Warren v. F-nn, 23 Biirb. 333;
Sh'rl''y v. Congress etc. I'ejincry, 2 E.lw. 505;
l)ut see Bailey v. G.een'caf, 7 Wheat. 4G;
Jones on Mortgages, sec. 19;). Also against a
Voluntary donee: (Jpshaw v. Ilarijrov-, Smed.
& M. 283, 202; Doyle v. Orr, ol Miss. 220;
M'tr-<li V. Turner, 4 Mo. 253; Taylor v, AUo-
u-ay. 3 Litt. 210.

A3 a^iinst heirs, the lien will attacli upon
im[)rovemcnt3 made on tlu land by t!io vendee
ill his life-time: Warner v, I'an .lls'yiie, 3
Paige, 513, 514; PA.y/6 v. Warded, 5 Id. 208;
Cojk V. Craft, 41 llow. Pr. 270. Upon a sale
of the land for debts, after the vendee's death,
the purchase money is f rst to be paid out of
the proceeds: While v. Casauavt, 1 liar. & J.
106.



ists agai.ut thj vendee and his heirs: Burt v.
Wil^o:i, 28 Cal. 0.]2; or his administrator:
Cahoo.i V. RJhiis:j:i, Id. 225; agai.ist his
privies in estatj, and against subsequent pur-
chasers who h ivc notice of it. The fact of
notorious and exclusive possession by a stran-
ger, tlie person lioMing the vendor's lien, is
ButHcieit [iroof of notice, in the absence of re-
butting t33tiinj;iy: Pell v. McElroy, 33 Id.
208; and see intra, herein.

The lien also exists agiinst those who take a
conveyance of tlic estate without alvaiuiig
any njw considjr.ition, so tliat tliey are nob
purchasers fjr valae: B'lrlin^jaine v. Ro'ihins,
21 Ba; 1). 327; llallerk v. Sml'h, 3 Id. 207; High
V. Batte. '0 Yerg. 183, 3 55; Perkins v. Swank,
43 Miss 310; Chance v. Mc Whorter, 23 G.a. 315;
Moii.nce v. Byers, 10 Id. 400; Gault v. TirmOo,



524



Title XIV, Cqap. VI.]



OTHER LIENS.



§3049



Notice ma}' be actual, as where tne pur-
cliascr 13 iuformcil by tiie parties: llar^b n-ijf-r
V. Foreman, SI I.l. ii'j4; or constructive from
possessiini: PMw J/cLV^'oy, ."G Gil. 2G3; from
the pcuiloncy of a suit of which the i.urchaser
is cognizant to euiorce the lien: G'n-yor?/ v.
Ilayncs, 13 LI. 591; Tharj^e v. JJunlap, 4
Hciiik. 074; or from recitals iii the deed under
which the veudce claims, showing that the
purchase money has not been paid, aUhough
the docd be not recorded, for he can only niaue
title by a deed which leads him to this fact,
and he must t'lcrefore be presumed to be cog-
nizant of it: Cordova v. JJood, 17 Wall. 1;
Matikh V. Shcar<r, 49 Ala. 220; Thrncui v.
Thunnan, 14 B. iMon. 'J24; Dowjhaduy v. Pain<>,
6 Minn. 443; V.'idls v. (Jay, 48 Tex. 403.
Knowledge of the lien by the buyer's agent
■would be sulhcient: iday v. Borel, \'l Cal. 91;
and see sec. 19, aide.

This defense of no notice is not available to
the purchaser if the purchase money has not
been actually paid Leiore notice was received:
Camjiljctl V. i.on-h, 4.') Ala. GG7; see Weaver v.
Bardcn, 49 N. Y. '280; Dre^er v. J/o. <C.- Iowa
li'y t'onx. Co., 93 U. S. 92; Ilonore v. Bnkeicell,
43 Am. Dec. 147; see note to sec. 2930, ante.

Eona Cdo ptircliassr or iuoumbrauoer for
valuo without nou::e. — 2>Iorlfia<j"x's. — In case
of a mortgage made upon the property by the
the vendee to a bona Ju/e mortgagee, the lieu
of the vendor Mill still attach to the equity of
redemption of the vendee, and upon a fore-
closure tif the mortgage the lien may be en-
forced upon the surplus: Broicn v. Porter, 2



Online LibraryCaliforniaThe codes and statutes of California, as amended and in force at the close of the twenty-sixth session of the Legislature, 1885 : with notes containing references to all the decisions of the Supreme Court construing or illustrating the sections of the codes, and to adjudications of the courts of oth → online text (page 100 of 131)