Eads v. Kessler

McFARLAND, J. This is an appeal by defendant from an ,'order of the court below denying a motion to discharge an attachment. The motion was based solely upon the ground that the respondent had a lien for the payment of the money sued for in the action, and that therefore the attachment was improperly issued.

The facts are these: On the 28th of December, 1895, the parties entered into an executory written contract by which the respondent agreed to sell, and the appellant agreed to buy, a two-fifths interest in certain patent rights, described in certain letters patent set forth in the contract. The price was six thousand dollars, a part of which was to be paid in cash, and the balance in two payments of nineteen hundred dollars each, on the first day of January, 1897, and on the first day of January, 1898, with interest, etc., and upon the making of said payments the respondent was to give to appellant a good and sufficient assignment and conveyance of said patent rights. The installment •due on January 1, 1897, not having been paid, this action was •commenced to recover the amount thereof, and a writ of attachment was issued and levied.

Appellant contends that the writ of attachment was issued improperly, and should be discharged, because the respondent bad a vendor’s lien upon the patent rights to secure the pay[246]ment of the money sued for. He rests his contention upon the provision of section 3049 of the Civil Code, that “One who sells-personal property has a special lien thereon, dependent upon, possession, for its price,” etc. But that section contains nothing which changes the common-law rule upon the subject; it-was a mere statement in a convenient form of what the common, law is. The code declares that: “The provisions of this code,, so far as they are substantially the same as existing statutes or the common law, must be construed as continuations thereof”' (Civ. Code, sec. 5); and the common law is, that a lien such as is contended for in the case at bar exists only under a complete sale which passes the title to the property. Such a lien' does not attach when there is a mere executory contract to sell upon compliance with certain conditions by the party proposing to-buy. In Tiedeman on Sales, section 119, it is said: “In order that a vendor of goods may claim a lien on the goods, they must have already become the property of the vendee, for one cannot-have a lien on goods belonging to himself”; and, further: “The; only cases in which the vendor can have a lien on the goods-are those in which the title to the goods passes to the vendeewithout delivery of possession.” In 21 American and English Encyclopedia of Law, pages 602, 603, it is said: "The lien exists only when the property has passed to the buyer, while the-goods themselves are still in the actual or constructive possession of the seller”; and the cases cited in the notes support the text. (See, also, 1 Jones on Liens, sec. 820; Conrad v. Fisher, 37 Mo. App. 382.) In the later case the court say: “It should be observed that the existence of a vendor’s lien always presupposes that the title to the goods has passed to the vendee, since-it would be an incongruous conception that the vendor might, have a hen upon his own goods.” If it has been held that one-who makes a written executory contract to sell his real property has a lien upon the property for the payment of the. purchase money, it is because the other party to such a contract is-held to have an equitable estate in the land; but we have been referred to no cases which hold that there is such a lien upon personal property where there is a mere agreement to sell. The authorities are the other way. This view makes it unnecessary to examine the other point made by respondent, namely,