Kuschel v. Hunter

CHIPMAN, C. Action to foreclose a vendor’s lien upon certain mining claims in Siskiyou county. Plaintiffs were the owners and conveyed the property to H. H. Hunter, one of the defendants, for the consideration of $2,000, of which $500 were paid in cash, and two promissory notes given for the balance. The notes falling due, plaintiffs commenced this action, and made certain holders of laborers’ liens, among them appellant, and also the vendees of the property, parties defendant. The court found as to the order in which the various liens should be satisfied, placing the lien of A. R. Campbell (appellant) subordinate to plaintiffs’ lien. Campbell appeals, and upon the judgment-roll alone. The pleadings are verified. The appeal is upon two grounds: (1) That no notice was given by plaintiffs that they were holders of a vendor’s lien, or had any interest in the said property as required by section 1192 of the Code of Civil Procedure. (2) That the Siskiyou Mining Company, being a corporation, and having hired appellant by the month, and not having paid him on a pay-day selected by said corporation, his lien is entitled to precedence over all other claims against said property except recorded mortgages and deeds of trust.

1. The lien of a recorded mortgage or deed of trust takes priority over a subsequent mechanic’s lien under section 1186 of the Code of Civil Procedure; and section 1192, requiring a person having or.claiming an interest in land on which an improvement is to be erected to give notice that he will not be responsible for the cost of the same, does not apply to nor affect the interest of a prior mortgagee under a recorded mortgage: Williams v. Mining Assn., 66 Cal. 193, 5 Pac. 85. In the case before us the court found that plaintiffs had a vendor’s lien, and appellant does not dispute the fact. He seeks only to subordinate it to his own. It was also found by the court that plaintiffs’ vendee, and the purchaser of the property from plaintiffs’ vendee—the Siskiyou Mining Company—had notice of this lien and the unpaid balance due, and that appellant also had such notice during all the times he was subsequently employed by the company. A vendor’s lien for the unpaid purchase price of land may be enforced against the vendee and his grantees who have notice of the [795]vendor’s equities: Pell v. McElroy, 36 Cal. 268; Combination Land Co. v. Morgan, 95 Cal. 548, 30 Pac. 1102; Burgess v. Fairbanks, 83 Cal. 215, 17 Am. St. Rep. 230, 23 Pac. 292. The Siskiyou Mining Company (one of the defendants not appealing) therefore took the title from the vendee subject to this lien. The court found that Hunter purchased the property from plaintiffs for himself and others, among them defendant, and that they afterward formed the corporation to which the property was conveyed with the knowledge of defendant, and with knowledge of the indebtedness due plaintiffs. Appellant, as a lienholder under this corporation, he also having notice of plaintiffs’ lien, occupies no better position. The reasoning in Williams v. Mining Assn, applies, I think, to the vendor’s lien as well as to the lien of a mortgage, and, if this is so, it was not required of plaintiffs to post the notice required by section 1192 of the Code of Civil Procedure, appellant having knowledge of their lien.