California Savings Bank of San Diego v. Parrish
Before: Belcher
Synopsis
Vendor’s Lien—Statute of Limitations—Agreement of Purchaser to Pay Note of Vendor — Maturity of Note — Payment by Vendor—-Running of Statute.—Where a purchaser of real property-agreed to pay the purchase money, with interest monthly, upon a note of the vendor given to a prior vendor, and further agreed that upon his failure to pay the interest or the principal of the purchase money upon said note at maturity, the vendor, his heirs, or assigns should be entitled to collect from him the amount unpaid, a cause of action arose in favor of the vendor against the purchaser immediately upon his failure to pay the note at maturity, without the necessity of payment of the note by the vendor; and an action to enforce a vendor’s lien for the unpaid purchase money is barred within four years from the date of the maturity of the note, nor does the fact that the note was afterward paid by the vendor, affect the running of the statute from such maturity.
Id.—Extinguishment of Lien—Lapse of Time.—Under section 2911 of the Code of Civil Procedure, a lien is extinguished by the lapse of the time within which an action can be brought upon the principal obligation.
Id.—Foreclosure of Mortgage — Crjss-complaint upon Vendor’s Lien—Demurrer of Mortgagor—Statute of Limitations.—In an action to foreclose a mortgage, where one of the defendants filed a cross-complaint seeking to enforce a vendor’s lien against the mortgagor as a prior charge upon the land, which showed upon its face that the time within which, under the provision of the Code of Civil Procedure, an action could have been brought by the vendor to recover the purchase money, had expired before the cross-complaint was filed, a demurrer to the cross-complaint filed by the mortgagor upon the ground that the lien set up, if any existed, was barred by the statute of limitations, should be sustained.
Belcher, C. This is an action td foreclose a mortgage made by the defendant W. Parrish to the plaintiff [256]on certain lots in the city of San Diego. Defendant, D. Choate, answered and filed a cross-complaint, in which he set up and asked to have foreclosed a vendor’s lien upon the lots described in plaintiff’s mortgage. Plaintiff demurred to the cross-complaint upon the ground, among others, that the lien set up, if any existed, was barred by sections 339 and 343 of the Code of Civil Procedure. The demurrer was overruled, and thereupon plaintiff answered the cross-complaint, alleging in substance that the said lien had been waived by Choate.
The case was tried, and the court found the facts, and, among other things, the amount due from defendant Parrish to the plaintiff and to the defendant Choate, and as a conclusion of law that Choate had a vendor’s lien on each and every part of the lands involved in the action, and had not waived the same, and that said lien was not barred by the statute of limitations. A decree was accordingly entered that the mortgaged premises be sold, and the proceeds of the sale, after paying the costs and expenses thereof, be applied: 1. To the payment of the amount found due to Choate and his costs; and 2. To the payment of the amount found due to plaintiff and its costs. From this decree and an order refusing a new trial plaintiff appeals.
The only question in the case is: Did Choate have a vendor’s lien which was prior to the lien of plaintiff’s mortgage, and was he entitled to be first paid out of the proceeds of the sale?
The facts of the case are in substance as follows: On September 12, 1888, defendants Choate and Parrish executed to one Lillian M; Cullen their joint promissory note for three thousand dollars, payable two years after date, with interest at the rate of ten per cent per annum, payable monthly, and if not so paid to be compounded. This note was given for a balance due to Cullen from Choate for the transfer by her to him of an .interest claimed by her in certain lands, including those involved in this action.
[257]On September 29,1888, Choate was the owner in fee of all the lands involved herein, and on that day he sold and transferred the same by a grant deed to said Parrish for the sum of two thousand five hundred dollars, but no part of this purchase price was then or has ever since been paid by him. At the time of the transfer, and as a part of the transaction, Parrish executed and delivered to Choate a written agreement by which he undertook to pay for Choate two thousand five hundred dollars of the Cullen note, and he stipulated that “ in case I shall fail at any time to pay the interest on two thousand five hundred dollars of said note when it falls due, or shall fail to pay the two thousand five hundred dollars of the principal of said note when it falls due, then and in that case the said D. Choate, his heirs or assigns, shall be entitled to collect of me on this agreement the sum I am so in default of paying.” Parrish failed to pay any part of said sum or the interest thereon, and on September 1, 1892, Choate was compelledto pay and did pay the whole thereof.
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