Dingley v. Bank of Ventura

Ross, J.: On the 2nd of May, 1874, the defendant Huse was the owner of certain real property, which, on that day, he conveyed by deed to the defendant Williams, in consideration of a cash payment of $5,000 in gold coin, and the “ further sum of $9,784, to be paid as follows: $5,000 in gold coin on the 15th day of December proximo, and $4,784 in gold coin on the 1st day of June, 1875, for which last two sums a lien is reserved to myself (the grantor) upon the premises.” The deed also contained this further clause:

“ And I (the grantor) hereby reserve a lien upon said tract of land as security for the payment of the balance of the purchase-money at the times hereinbefore specified, in gold coin of the United States, with interest at the rate of one per cent, per month from the 15th day of April, 1874; and upon the payment of the balance, namely, $9,784, with the said interest thereon, I (the grantor) bind myself, my heirs, executors, and administrators to execute a full release and quitclaim of the said premises, free from all incumbrances whatsoever.”

The deed was properly acknowledged, and was duly recorded in the appropriate county. For the deferred payments, the vendee executed his two certain promissory notes to Huse. The one for $4,784 Huse afterwards indorsed and assigned, for a valuable consideration, to the plaintiff’s intestate. The defendants other than Huse and Williams are the claimants of certain interests in the land acquired subsequent to the execution and recording of the deed from Huse to Williams; but they claim that the assignment by Huse of the note of $4,784 operated a waiver of the lien, and consequently that the assignment of the debt did not convey with it the security. If, as seems to be supposed by appellant’s counsel, the lien held by Huse as security for the payment of the deferred purchase-money was simply a vendor’s lien, their position would undoubtedly be correct. But this was not the case. The lien reserved by Huse was something more than a vendor’s lien. Vendor’s liens are created by the law, and not by contract of [471]parties. Section 3046 of the Civil Code, which was in force when the transaction in question was had, declares : “ One who sells real property has a 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.” In the case under consideration, the purchase-price remaining unpaid was not “ unsecured otherwise than by personal obligation of the buyer ”; for the parties to the deed expressly contracted that the vendor should have a lien for the unpaid purchase-price. It is not, therefore, a vendor’s lien, but rather a lien secured to the vendor by the contract of the parties. It was, in effect, though not technically, a mortgage. In Jones on Mortgages, § 229, it is said: “Alien for the purchase-money, expressly reserved by a vendor in his deed of conveyance, is a lien created by contract, and not by implication of law. It is a contract that the land shall be burdened with the lien until the note is paid. It is really a mortgage. The lien, then, becomes a matter of record when the deed is recorded. It is not waived by the taking of other security, as is the case with an ordinary vendor’s lien. It is governed by the rules that a mortgage is. It passes by an assignment of the note secured by it. It is foreclosed as a mortgage, and there is the same right of redemption for a limited period after a foreclosure sale. ” (See also 1 Herman on the Law of Mortgages, § 212; Markoe v. Andras, 67 Ill. 34; Moore v. Lackey, 53 Miss. 85; Wright v. Troutman, 81 Ill. 376.) There was nothing in any law which prevented the parties from creating this lien by contract. Section 2922 of the Civil Code, relied on by appellants, did not do so. That section declares : “ A mortgage can be created, renewed, or extended only by writing, executed with the formalities required in the case of a grant of real property.” As already said, the lien in question was not technically a mortgage, but it was one in effect.