Hunt v. Waterman
Before: Baldwin
Synopsis
Appeal from the Eleventh District, County of El Dorado.
This was a bill filed in the Court below, for the enforcement of a vendor’s lien to a quartz lode.
The facts as disclosed by the opinion of the Court, are as follows :
In this case the plaintiff seeks to enforce a vendor’s lien for the purchase money of a certain quartz vein sold by the plaintiff to the defendant, and charges that the other defendants are purchasers of the property from Waterman, with notice of this indebtedness. The bill shows that the plaintiff took a mortgage on this property for the payment of this purchase money, but avers that by reason of some defect in the deed or acknowledgement, it is not available as a security for the plaintiff’s debt. It is not very clear whether the plaintiff meant to rest his claim for relief on the mortgage or on the vendor’s lien, or on both. But, from the bill, demurrer and decree, we take it that he abandoned the notion of the validity of the mortgage, and relies on the vendor’s lien.
The decree is for the enforcement of the paroi or tacit lien. Defendants appealed to this Court.
Baldwin, J., delivered the opinion of the Court—Terry, C. J., and Field, J., concurring.
The question in this case is directly presented, whether, in this [305]State, a vendor’s lien exists when a mortgage security is taken for the purchase money. The decisions of the various Courts have been numerous on this branch of jurisprudence, and are not harmonious. The better rule, supported by the weight and number of the authorities, is to hold the silent lien of the vendor extinguished, whenever the vendor manifests an intention to abandon or not to look to it; and it is held that he does this whenever he takes other and independent security upon the same land, or a portion of the same land, or on other land. When he looks to other security he loses this tacit lien. Brown v. Gilman, 4 Wheat. 290 ; 1 Mason, 212; Fisk v. Howland, 1 Paige Ch. R. 20, where the authorities, English and American, are fully reviewed.
The editor of Leading (Jases in Equity, reviewing the case of Macreth v. Simmons, (15 Vesey, 350) cites and reviews a very great number of cases which decide and discuss the general doctrine, and this particular point. The case of Boos v. Ewing, (17 Ohio, 521) cited by respondent, seems to be the other way, and is noticed by the editor as a case opposed to the general current of decision.
The fact, if we regard the averment of the bill as properly stating it, that the mortgage was defective in itself, or its acknowledgment, does not help the plaintiff. For, as we have seen, the question is as to the intention of the vendor, which is as well shown by an informal act as one regularly done. If the mortgage was properly executed, it may be enforced, of course; but the whole case seems to rest here on the validity of the vendor’s lien. It is not stated how, or in what, the mortgage was defective, and this general and loose averment is not sufficient to withdraw the case from the influence of the general rule we have announced.
That the case may be fairly tried upon its merits, in view of the law as we have held it to be, the decree is reversed, and the cause remanded for further proceedings on another trial.
More from California Supreme Court
- People v. Wende (1979)
- People v. Watson (1956)
- People v. Superior Court (Romero) (1996)
- People v. Kelly (2006)
- Auto Equity Sales, Inc. v. Superior Court (1962)
- Aguilar v. Atlantic Richfield Co. (2001)
- People v. Lewis (2021)
- In Re Estrada (1965)
- Denham v. Superior Court (1970)
- People v. Marsden (1970)