Burgess v. Fairbanks

McFarland, J. — This is an action to enforce a vendor’s lien for balance of unpaid purchase-money. Judgment was for plaintiff, and defendants appeal from the judgment on the judgment roll alone.

The complaint is sufficient. It avers clearly enough that plaintiff sold the land to the defendant George E. White for $4,150; that of said purchase-money said White paid plaintiff $2,400, and also, according to the terms of [216]the sale, paid to one McMurray $1,025, due on a mortgage on the land, and that the balance, $750, with interest, is due and unpaid; that at the time of the sale, for reasons known to the said White, and at his request, a conveyance of the land was made by plaintiff, with the name of the defendant H. T. Fairbanks inserted therein; and that the latter knew all the facts of the transaction. These averments warrant the enforcement of the lien as against Fairbanks.

There is nothing in the point that the remedies at law must first be exhausted before a bill in equity to enforce a vendor’s lien can be resorted to. (Sparks v. Hess, 15 Cal. 186.)

The point that plaintiff waived his lien by taking as security the promissory note of a third person is not tenable. The written instrument relied on to sustain this point is as follows:—

“$725. Kikawaka, Nov. 15, 1886.

“Due to George W. Burgess, and payable when the suit now in court between him and C. B. Bice is settled, seven hundred and twenty-five dollars.

[Signed] “Wm. T. White,

“Agent for George" E. White.”

This instrument is not a promissory note; and it is unnecessary to determine whether, prima facie, it is the personal obligation of the principal or the agent. It at least bears a strong suggestion of agency; and it would have been competent to show by parol evidence how it was received, and who was intended to be bound by it. (Bean v. Pioneer Mill Co., 66 Cal. 451; 56 Am. Rep. 106; Sayre v. Nichols, 7 Cal. 534; 68 Am. Dec. 280.) And as it is averred in the complaint and found by the court that the instrument was made by George E. White, the finding will be presumed to be supported by the evidence.

We see no material insufficiency in the findings.

Judgment affirmed.