The record-union., 1891-02-16
THE COURT.

We concur:
FooTE, c.,
BELCHER, c..
THE COURT.
For the reasons given in the foregoing
opinion, the judgment is reversed, with
instructions to the court below to sustain
the demurrer to the complaint.
I. Filled February 6, 1884,
Appeal from Superior Court, Los An
geles County-Walter Van Dyke, Judge.
For appellant, L. j. Carran, Walter
Bordwell.
For respondents, Wells, Guthrie e. Lee,
G. Mcfarland, Albert Crutcher.
DEPARTMENT ONE.
AVERY, Appellant,
VS.. No. 13 800
CLARK EFT AL, Respondents.
This is an action for the foreclosure of a
mortgage made by the defendants
Humeston to one Robbins, and by him
assigned to the plaintiff. The defendants
other than the mortgagors are claimants
of mechanics liens for labor and mate
rials furnished in the construction of a
dwelling-house upon the premises de-
scrlbed in the mortgage. Judgment was
rendered for a sale of the premises, and
directing that out of the proceeds of the
sale the claims of the respondents (Mc-
Carthy, Clark and Humphreys should
gage claim Of the plaintiff. From this
judgment the plaintiff has appealed,
upon the ground that his claim was the
first lien upon the lands.
The case is here upon the Judgment
roll alone, and presents the following
facts:
September "a, 1883, A. S. Robbins, the
plaintiffs assignor, being in possession
of lot of land in Los Angeles under a
contract of purchase from one Critics,
who was the owner, made an agreement
with the defendant Cassie M. Humeston,
to sell her the same for the sum of $500,
of which she then paid $500, and took
possession of the land. This agreement
was never recorded. In the latter part OF
October of the same year the defendant,
r. C. Humeston, husband of said Cassie,
with her consent, and at the advice OF
Robbins, began the construction of a
dwelling-house upon the lot, which was
completed April Is, 1885,. No written
contract was made for the construction OF
the house, and its value or cost exceeded
$1,000.
January 5, 1889, Critics executed to
Robbins deed OF the lot, and on the
same day Robbins conveyed it to Mrs.
Humeston, and at the same time Mrs.
Humeston and her husband gave him
their four promissory notes for five
hundred dollars each, for the unpaid
amount of the price thereof, and executed
the mortgage in question to secure their
payment. Both of the deeds were re-
corded on the day Of their date, and the
mortgages two days thereafter.
March 10, 1889, the plaintiff purchased
the mortgage and notes from Robbins,
who on that day assigned" them to him.
Prior to the date of this mortgage, viz:
December 3. 1855, the respondents, Clark
and Humphreys, entered into verbal
contract with r. G. Humeston to furnish
lumber and other materials as might be
required in the construction of the house,
and between that day and April 10, 1889
furnished materials which were used in
such construction, to the value of S2,017,
for which they afterwards filed theiI
claim of lien. At the time of making this
contract they knew that Mrs. Humeston
claimed the land under a contract, and
was indebted to Robbins for the purchase
money to the extent of 1000. The court
does not find on what day Clark and
Humphreys commenced to furnish the
materials, other than that it was 'be-
tween the Sd day of December, 1883, and
April 10, 1882 but it is conceded in the
brief of counsel for appellant that they
commenced to furnish them on the Sd
day of Decem Der, 1888.
1t is contended by the appellant that by
virtue Of the contract of sale between
Robbins and Mrs. Humeston there was
created in favor of Robbins vendors
lien for the unpaid portion of the pur-
chase money, which was preserved in the
mortgage that was taken at the time Rob
bins convened the property to her, ano
that the right to enforce this lien passed
to the plaintiff by the assignment to him
OF the notes and mortgage, and has prior
ity over the liens Of the respondents.
A vendors lien is not the result of any
agreement or any intention OF the vendor
and yendee, but is simple equity raised
by courts for the benefit of the vendor
of real estate. 1t is a privilege purely
personal, and cannot exist in favor of any
but the vendor. 1t does not exist in
his favor if he has other security for the
land which he has conveyed. 1t is no
assignable, even by express contract, mol
does it pass to the assignee of the ven.
dee's obligation. for the purchase money
1t has been uniformly held in this STATE
that this lien is lost by any act OF
the part of the vendor manifesting any
intention on his part not to rely upon thu
lien, and that, although it is competen
for him to take security for the paymen
of the purchase price of the land, and by
an express agreement not lose his righ
/ to resort to this lien, yet his taking sucl
| lien, and, in the absence of some agree
ment to the contrary, the vendee will
hold the land discharged from such lien
In Hunt VS.. Waterman (I2 al.-30l) th,
vendor had taken a mortgage on thu
property sold, for the payment of the en-
tire purchase money, but by reason o
some defect the mortgage was unayailins
as a security. He then Brought an actor
to foreclose his vendors lien. The cour
says: 1.-THE question in this case is di
rectly presented whether in this State
vendors lien exists when mortgage Sc
curity is taken for the purchase money
Decisions of the various courts have beer
numerous on this branch of jurispru
dence, and are not harmonious. The bet
ter rule. supported by the weight anC
number of authorities. is to hold tn,
silent lien of the vendor extinguishe6
whenever the vendor manifests an inten
ton to abandon, or not to hook to it; an(
it held that he. does this whenever ht
takes other and independent security
upon the same land, or a portion of tn,
same land, or on other land. When hi
looksto other security he loses this taci
lien." In Baum.v VS.. GFigsby (2l Cal. 172)
Judge Field, delivering the opinion o
the court, says: ''W hen any other indie
pendent security is taken-as mortgag,
ON the land OF upon other property, o.
! the personal responsibility of third per
son-the lien is held to be waived unless
there is at the tihfe EN- express agreemen
for its retention. The taking-of distinct
independent security lis presumptiv,
evidence of the waiver,
1t is. also the. established rule in thi
State that this slien is not assignable, ant
that the assigneeof the right to recove
the money for. which ,the',land was solt
cannot enforce the lien. Baum VS.
Grigsby, supra; Camden VS.. Vail, 2
Cal. 633.) In Baum VS.. Grigsby tn,
court says: 1.-The cases which deny. tha
| the lien passes with the personal security
of the vendee do not rest, except in few
instances, upon the want of a special as
ground that the lien is in its nature un
assignable, and to that conclusion w,
| haze arrived The asSirnnn q