McFarland, J., dissenting.—I dissent, and adhere to the opinion heretofore rendered by the court in Bank after the first rehearing (Austin v. Pulschen, 42 Pac. Rep. 306), which approved the opinion of Commissioner Vanclief. (Austin v. Pulschen, 39 Pac. Rep. 799.) Heretofore those who favored the contention of respondent McDonald only went so far as to hold that he ought to be subrogated to the position of Bruce and Kent (see dissenting opinion to Austin v. Pulschen, 42 Pac. Rep. 307); but now it is to be held that the judgment be affirmed, which makes the whole amount of his mortgage, including the old personal debt to him from Pulschen, superior to the lien for the debt of the latter to appellant for the purchase money of the very land out of which McDonald is now to receive his old and apparently worthless claim. Respondents’ side of the case has assumed, from time to time, many new phases; but under neither of them can appellant, in my opinion, be compelled to lose her purchase money and her lien therefor. She sol'd to Pulschen in the faith that he would pay the $2,300 evidenced by his two notes; the representations of Pulschen that he could and would pay them were, as the court found, “false and were made with intention to deceive plaintiff”; when McDonald took his mortgage from Pulschen, as the court found, “said Pulschen on said date informed said McDonald that he was about to purchase said described premises from said plaintiff”; she was then in possession, and her contract from her grantor was of record; and McDonald was bound to know the condition of the purchase money on the sale from her to Pulschen. She paid at least $2,500 for this land to Henderson. Plow much more she paid does not appear, although it appears that the $2,500 was for a “balance.” Of this amount she has received only $300, and will probably receive no more; for if the property were sufficient to pay all, this litigation would hardly have occurred. It is said now that appellant never had a vendor’s lien, because she never had the legal title and retained possession as security. But she had, under any view, an [535]equitable title, was in possession, and. sold to Pulschen; and, under these circumstances, had full right to a vendor's lien. “One who sells an equitable right to land retains a lien on it for the consideration whenever, under the same circumstances, the vendor of the legal title would hold an equitable lien. The same principle and reason apply to both cases.” (Stewart v. Hutton, 3 J. J. Marsh. 179. Also other cases cited in note to 2 Sugden on Vendors, 7th Am. ed., 857.) Moreover, substantially, and in legal effect, she had the legal title and conveyed it to Pulschen; for, as found by the court, “at the request of said plaintiff,” the legal title was conveyed to him by Bruce and Kent. If Bruce and Kent had conveyed to her, and she had immediately conveyed to Pulschen, so that there would have been two deeds instead of one, would not the effect have been the same? Pulschen contracted with appellant for the legal title, and got it; and McDonald’s counsel advised him that it would be necessary to get a deed from her, and she also joined in the conveyance. Therefore, Pulschen, for the purpose of avoiding a vendor’s lien, could not deny her title, and his successors with notice would be in the same position.
I cannot see how appellant lost her vendor’s lien by retaining possession of the land. By so doing she did not take any security other than her vendor’s lien; and her possession was simply notice of her lien to all the world; for, when the vendor retains possession of the land, subsequent purchasers from the vendee are put on inquiry as to whether the purchase money has been paid. (Hopkins v. Garrard, 7 B. Mon. 312.) And the court finds that appellant was in possession “ ever since said twenty-fifth day of October, 1889, to the fourteenth day of July, 1891,” the latter date being nearly three months subsequent to the date of McDonald’s mortgage, which was April 16, 1891.
As to the finding that appellant afterward, on July 14, 1891, “signed and delivered” to one Bosencrantz “two unacknowledged deeds to said premises,” it is not neces[536]sary to say more than was said in the opinion of the court, to be found in Austin v. Pulschen, 42 Pac. Rep. 306. What the nature of those “ deeds” thus blindly mentioned in the findings were does not appear; but the court below attached no importance to them, for it found that appellant did not thereby “ waive any lien,” and that Rosencrantz was a mere mortgagee of Pulschen to the extent of $600.
It was contended in the petition for rehearing that McDonald should be subrogated to the lien of Bruce and Kent for $2,700. How, in the first place, the judgment does not go upon any theory of subrogation. It gives McDonald a priority as to the whole of his mortgage for $4,500 and interest, and makes no attempt to segregate the amount of the Bruce and Kent claim. In the next place, the answer of McDonald sets up no right of subrogation. It makes no reference whatever to the claim of Bruce and Kent, and intimates no right to be put in their place. It denies that appellant had any claim of any kind to the premises; denies that Pulschen ever purchased from, appellant; avers that, at the time Pulschen mortgaged to him, Pulschen owned the property “ free and clear from any and all liens, encumbrances, claims thereto or thereon of any kind, name, and nature whatever”; and stands upon his mortgage as the first and only lien on the premises. Clearly, therefore, if there is to be a subrogation, the present judgment should be reversed; and McDonald, if he chooses now to rely on subrogation, should amend his pleading so as to present that issue. Moreover, for another reason, the pleadings and findings should be different if the theory of subrogation is to be adopted. So far as the facts upon which subrogation could be awarded can ■ be gathered from the present findings, they are these: The claim of Bruce and Kent for a balance of $2,500 purchase money arose upon a bond given by them to convey to Henderson a tract of land consisting of twenty acres. How, the appellant bought from Henderson the undivided one-half of that tract, with [537]the privilege of selecting either the north or south half in severalty, and she did select the south half, “ and entered into possession of said south half of said lot, and ever since said twenty-fifth day of October, 1889, to the fourteenth day of July, 1891, continued in the possession of the same”; and this south half constitutes “the premises” upon which she seeks to enforce her vendor’s lien, and which is involved in this action. Now, would equity allow respondent to enforce the whole of the old claim of Bruce and Kent against appellant’s one-half of the property? It is, I think, quite apparent that the matter of subrogation could not be equitably disposed of without amended pleadings and specific findings upon issues thus raised. Under any view, therefore, the judgment should be reversed.