The record-union., 1891-02-16

then has for the purchase money is Gre
ated by express reservation and cannot
be impaired by any act of the vendee.
This is an cypress lien existing by virtue
of contract executed between the par
ties, and is capable of assignment and
,forcement by his assignee. (Paylor VS..
Mckinney, 20 Cal. ,6IS.) Such a lien is
open and manifest to the world, and is
entirely different from the secret, invisi-
| BILE lien which the law implies in behalf
| of the vendor when he parts with the title,
and which is known only to the parties to
| the transaction, and those to whom they
may communicate the fact. For such lien
equity makes no special provision, but
| leaves the parties to rely upon the con-
tract which they have executed between
themselves.
Whatever was the nature of the secur-
lty held by Robbins prior to January 5,
1889, by virtue of the contract of sale be-
tween him and Mrs. Humeston, whether
| it was a vendors lien or lien in the
nature of a mortgage, or whether, in
| asmuch as he did not himself have the
title to the land, it was security differ
| ing from either of these, when he took
the promissory notes of Mrs. Humeston
and her husband, secured by their mort
gage upon the land which he then con-
veyed to her, he waived whatever lien he
had prior to that date, and thereafter had
only the lien that existed by virtue OF
the mortgage. The unpaid price of the
land did not thereafter remain unse-
cured otherwise than by the personal
obligation of the buyer" In addition to
her personal obligation he had the per-
sonal obligation of her husband, together
with their mortgage on the land to secure
the same. By these acts his vendors
lien, If he had any, was extinguished
and his prior security was merged in the
mortgage, and became an open, public
and express lien. Nor did the insertion
in the mortgage of the clause, .'this
mortgage is given in part payment of the
purchase money of the within described
property" have the effect to extend the
lien by relation, to the date of the con-
tract of sale. These words do not constitute
or imply any agreement or intention fol
the preservation of prior lien. The fact
that the mortgage which the vendor
4 takes at the time of the conveyance is ex-
pressed to be for the purchase money OF
the land, is none the less a waiver of his
vendors lien.
The plaintiff in this. case, has, however
only such rights of lien upon the land as
Robbins could transfer, and such as he
did transfer on the 18th of March, 1889, by
his assignment of the notes and mortgage
He does not in his complaint allege any
assignment to him of any other lien thar
was created by the mortgage-his allega-
ton being, that ''on the 18th day of March
1889, for valuable and sufficient consid
Grafton, said plaintiff purchased SAID
mortgage and notes from said A. s
Robbins, who then and there duly
assigned, transferred, set over and deliv.
cred the same to the plaintiff;" and the
! hndlng OF the court is in accordance with
this allegation. We have seen above thai
as the assignee of Robbins he is not enti.
tied to assert any vendors lien in his OWE
behalf
Section lls6, C. c. p, declares that
The liens provided for in this chapter
are preferred to any lien. mortgage, o,
other membranes which may have
attached subsequent to the time wher
the materials were commenced
to be furnished"
Inasmuch as the only lien which ths
plaintiff has is that of his mortgage
which did not attach to the land unit
January 5, 1889, and as the respondents
commenced to furnish the materials TO,
which their lien was allowed prior to tha,
date, it follows that their lien was pre-
ferred to the lien of the plaintiff.
Nor do the provisions of Section 2S9S O
the Civil Code give to the plaintiff, under
the facts of this case, priority for the lier
OF his mortgage III disregard of this sec.
ton. Section 1892, c. C. P, provides
that: Every building $ con.
structed upon any lands with the knowl
or claiming any interest therein, shall bt
held to have been constructed at the in
| stance OF SUCH owner or person having OF
| claiming an interest therein, and the in
terest owned or claimed shall be sub
ject to any lien filed in accordance will
the provisions of this chapter" unles.
| such person shall give notice that he viii
not be responsible for the same. No
only did Robbins fail to give any sucf
notice, but the court finds that he ICON
scnted to and advised the construction O
said dwelling-house." Although he wa:
not the 'owner" of the lands until Janu
ary 5, 1889, yet by virtue of his contrac
with GILES, he was until that date, anc
for several months prior to the tim,
when the respondents began to furnish
materials, 'person having or claimin.
an interest therein,'' and that interest. Il
its entire extent, became subject to thei
lien.
The principle upon which liens are al
lowed in favor of mechanics and materia
men is that their labor and materials hay,
given value to the buildings upon which
they have been expended, and that it il
inequitable that the owner of the land
who has contracted with them for sucl
improvement, or who has stood by an(
seen the improvement in progress with
out making objection, should. have tn,
benefit of their expenditures withou
the absence Of the foregoing provisions
of the code, it would be in contrayentiol
of well-established rules if under the fact
of this case the lien of Robbins shoult
have priority over that of the respond
ents. Having advised the construction
of the dwelling-house upon land the1
owned by him, under the most element
ary principles of equity, he would not b
permitted to avail himself of this in
creased value for the purpose of enhanc
ing his own security at the expense O
those who had themselves given value t.
the land.
There was no error in allowing to Clarl
and Humphreys, as portion of thei
used in the building. The court fount
that Clark and Humphreys furnished tt
the defendant. r. G. Humeston, materials
of the value of 81, ,037 "a. to be used in tn.
construction of the dwelling house, ant
that ''of and included in said amount is ,
claim for glass amounting to $3.50, fur
nished by the firm of Schlesinger & Gold
| water" and that SchleSinger & Goldwate
refused to deliver the same until paid for
The court does not find that Schlesinge
d Goldwater furnished the glass t,
Humeston. but does find that the ma
terial furnished by Clark and Humphrey
to Hameston was of the above value, ant
that in this amount was this claim for glas
WHICH SculeSlilgeT N UOluWater refuSet
to deliver until paid for, and that Clarl
and Humphreys paid Schlesinger d. Gold
water for the glass. These findings ar
entirely consistent with the fact tha
Clark and Humphreys agreed witt
Humeston to furnish the glass for th
dwelling house, and for that purpos
bought the same from Schlesinger
Goldwater, but that Schlesinger & Gold
water refused to deliver the glass to then
until it was paid for, and that thereupoI
Clark ana Humphreys paid for the glass
and furnished it according to their con
tract with Humeston.' AS the appeal il
taken upon the judgment-roll withou
any bill of exceptions, we must assum
that the ayideuca 1uas Snfficinnt 70, ~,