Sawyer, C. J., concurring specially : After a careful consideration of the subject, I have arrived at the conclusion, that so shadowy a right as the claim of the vendor of land, to have the unpaid purchase money after default charged upon the land by a Court of equity, is not a lien within the provisions of the Practice Act, which precludes the right to attach. It is not a lien acquired by express contract, but is one of a very imperfect character, at least inchoate, not recognized at all in a Court of law, where attachments are enforced, but fastened upon the land by a Court of equity upon application duly made, even against the apparent intentions of the parties. A Court of equity seems to proceed upon the sole ground, that it is inequitable for a party to retain the land without paying the consideration; and, when it can, without injury to other parties, it will require payment out of the land. If no security has been taken, and no act amounting to a repudiation of this equitable claim is done at the time of the sale, although nothing of the kind was in fact contemplated’ by the parties themselves, the lien, such as it is, or right to secure a lien, is cast upon the vendor, willing or unwilling. Yet the vendor has no present legal right, and no means whatever of protecting his claim against the act of the vendee in selling to an innocent purchaser at any time before the money falls due, nor is he in a condition to file his bill in equity to enforce it. It is a right in posse, rather than in esse, which may be divested by the acts of the vendee without the fault of the vendor, before he can be in a position to render it available. It is a mere contingent privilege, personal to the vendor himself, which cannot he assigned with the debt, and over which he has no control whatever, till he can take hold of the property by a bill to enforce his privilege, or claim actually filed. (Baum v. Grigsby, 21 Cal. 172.) The vendor has no present indefeasible right to have his debt charged upon the land. It is not a present specific lien. He is simply in a condition, which may, or may not, at some future time, de[205]pending upon contingencies over which he has no control, enable him to acquire a lien, or obtain an appropriation of the proceeds of the land to the payment of the debt, through the intervention of a Court of equity. It seems to me to be a misnomer to call this imperfect, contingent, unassignable personal privilege, before suit brought, a present subsisting lien in any sense. It is but a possible capacity to acquire a lien, at some future day. I cannot think it a “lien,” by which a debt can be said to be “secured,” within the meaning of those terms as used in the Practice Act with reference to attachments.
Both Courts and law writers have been at a loss to properly characterize the right of the vendor under consideration, and for the want of a better name have somewhat loosely called it an equitable lien. The learned authors of the American Notes to "White & Tudor’s Leading Cases in Equity, in discussing the character of this right, observe: “But a lien of this kind is not an original, specific and absolute charge on the land, but only an equity to resort to it upon the failure of the personal estate. The personal estate is the primary fund for the payment of the vendor’s claim, and the real estate is liable only secondarily. Therefore, a bill in equity, to enforce a vendor’s lien, must show that the complainant has exhausted his remedy at law against the personal estate, or must aver such facts as show that the complainant cannot have a full, complete and adequate remedy at law,” etc., and cite numerous authorities to sustain the position. (Vol. I, Ed. 1852, top page 274.) Again: “The circumstances that the vendor’s claim is not such an interest as he can assign, and that he cannot charge the land until he has exhausted his legal remedies against the personal estate, which the best authorities agree in, indicate unmistakably that this is neither an equitable mortgage nor a trust. The true nature of the claim appears to be this: It had its origin in a country where lands were not liable, both during and after the death of the debtor, for all personal obligations, indiscriminately, including debts by simple [206]contract; and it seems to be an original and natural equity that the creditor whose debt was the consideration of the land should, by virtue of that consideration, be allowed to charge the land upon failure of personal assets. It is not a lien until a bill has been filed to assert it; before that is done, it is a mere equity, or capacity to acquire a lien, and to have satisfaction of it. When a bill is filed it becomes a specific lien.” (lb. 279.)
So, also, Mr. Justice Story says : “ The lien of a vendor for purchase money is not of so high and stringent a nature as that of a judgment creditor, for the latter binds the land according to the course of the common law; whereas, the former is the mere creation of a Court of equity, which it molds and fashions according to its own purposes. It is, in short, a right which has no existence until it is established by the decree of a Court in the particular case, and is then made subservient to all other equities between the parties, and enforced in its own peculiar manner, and upon its own peculiar principles. It is not, therefore, an equitable estate in the land itself, although sometimes that appellation is loosely applied to it.” Again: “ It is, too, so peculiarly and exclusively the creature of a Court of equity that its existence cannot safely be averred independent of the decree of such a Court.” (Gilman v. Brown, 1 Mason, 221.)
So, also, in Sparks v. Hess, 15 Cal. 198, Mr. Chief Justice Field observes: “ This lien (vendor’s) is not, however, a specific and absolute charge upon the property, but a mere equitable right to resort to it upon failure of payment of the vendee. The vendor has parted with the equitable title, and possesses only a bare right, which has no operative force or effect, until established by the decree of the Court.” The same observation is substantially repeated by the Chief Justice in Baum v. Grigsby, 21 Cal. 176, with other remarks illustrative of the character of this claim, which, he says, “ Is the personal privilege of the vendor.” He further adds: “ ‘ The vendor’s lien,’ says the Supreme Court of Tennessee, ‘is nothing more than a mere equity capable of acquiring the force and efficacy of [207]a lien under certain cv cumstances in the event of the non-payment of the purchase money,’ ” etc. (Ib. 177.)
Although there is some conflict among the authorities on the point, it has often been held, and, perhaps, the weight of authority is that way, that even creditors of the vendee take precedence of the vendor’s lien. Washburn says: “But upon the question how far it (the vendor’s lien) shall prevail against creditors of the purchaser, there have been various opinions. As a general proposition, it does not prevail against such creditors, though against-a voluntary assignment made by the purchaser in favor of his creditors, it will, if the vendor file his bill in equity to enforce it before the execution of the trust, especially if the assignment be in favor of antecedent creditors; and bona fide creditors [not purchasers] without notice are considered as having equities superior to that of the vendor.” (1 Washb. Real Prop. 500; see also to the same effect 1 Wh. and Tud. Lead. Cas. in Eq. 279, 280.)
If the foregoing authorities present the true idea of the character of the so-called vendor’s lien, it is not too much to say that it cannot in any just sense be regarded, before complaint filed to enforce it, as a present lien, or as a security for the debt.
A mechanic who labors upon a building has, under the statute, the privilege of acquiring a lien upon it, by taking certain proceedings within the prescribed time; but he has, in fact, no lien till the proceedings are taken. Like a vendor of real estate, he has a capacity to acquire a lien without having the lien itself, until the property is taken hold of by the proper proceeding—in the one case, by filing the proper notice in the Becorder’s office, or doing whatever else the law requires, and in the other, by filing his bill in a Court of equity. Ho one would claim, I apprehend, that the mechanic would be precluded from attaching by his right to acquire a lien, till he had, in fact, secured a lien by the acts necessary to give it life. Yet he is in a better position than a vendor of real estate; for the mechanic’s right to a lien cannot be [208]defeated without his own laches, while the vendor’s can. The lien of the bailee for hire, the tailor upon the garment made or repaired, the jeweler upon the gem which he has set, the shipwright upon the vessel constructed, or repaired, or the like, for his compensation, is in no sense analogous to that of the vendor of real estate; because the right of the former is a present, subsisting, indefeasible lien, recognized as such, at law, and not depending upon the grace of a Court of equity. The lienholder himself generally has the possession of the property, of which he cannot be deprived, at law, or in equity, till the claim is satisfied. It requires no future act to endow his lien with vitality, or fasten it upon the property. I see no reason why he may not assign the claim secured, and pass the lien with the possession of the property as incident to the debt, like any other security. It is not, therefore, like a vendor’s lien, a mere personal, unassignable privilege to acquire a substantial lien at some future time, provided nobody else in the meantime secures a prior right, and defeats' this privilege. It is a right in esse, and not, merely, in posse, and one of which the lienholder cannot be deprived either in a Court of law, or equity, or by the acts of third parties, without his own concurrence. A claim covered by such a lien may well be said to be “ secured.” But in what sense can a vendor’s lien be said to secure the purchase money before bill filed?
I feel no embarrassment in following such lights as Mr. Justice Story, and those other Judges and law writers, who have attempted to define, with some degree of precision, the right of the vendor, in saying that the lien has no existence till a bill is filed in a Court of equity—or “ that its existence cannot safely be averred independent of the decree of such a Court.”
In Hill v. Grigsby, 32 Cal. 55, there was no occasion to consider this precise question, and our attention was not so particularly drawn to it; for in that case the vendor had not conveyed the land, and he had a clear, fixed and indefeasible legal right which could not be divested without his consent. He was perfectly secured by a lien that was paramount to [209]all other claims existing, or that could be acquired without the acquiescence of the vendor himself.
For the reasons indicated, I am of the opinion that a mere vendor’s claim to have the purchase money charged upon the land conveyed, by whatever name it may he properly called, before a complaint filed to enforce it, is not a lien securing the debt within the meaning of these terms as used in the provisions of the Practice Act under consideration, and, on this ground, I concur in the judgment of affirmance.