Los Angeles herald., 1892-12-23

Against CdSIlllUHs
Case of an Alleged Fence-Notes Of
Cases In the Courts Yesterday.
New Suits Filed in tho
Clerks OHace.
Deputy Supreme Court Clerk Ash
more yesterday received opinions in
two cases. one Of them the case of E. B.
Woolley, respondent, vs.. Isaiah Wick
erd, appellant, being quite long
opinion.
The case was originally brought by
the plaintiff to recover judgment for
$400, the balance due on a real estate
purchase, and to foreclose a vendors
lien on the property. He recovered
judgment in the superior court of this
county, and the defendant appealed
from it and from an order denying his
motion for new trial.
The points ON appeal, made by the
defendant, were, that the plaintiff had
lost his rights by delay, and that there
was not vendors lien that could be
enforced in this case.
The supreme court finds that the de-
lay was by agreement and with the con-
sent of the defendant, which operated
as waiver by him.
The court says that the evidence as
sufficient to justify the findings upon
this point.
Upon the other point the discussion is
longer. The plaintiff had sold and as.
signed his claim for the amount involved,
! $400, unpaid purchase money, before
the judgment was rendered. The theory
that the lien was not assignable there
/ fore ceased to exist when the sale was
made, and could not thereafter be en-
forced in the name of the assignor or
assignee.
The opinion says that it is true that
when the owner of real property parts
with his title, and the purchase money
is not paid and no security ia taken, the
| law implies lien in his favor to secure
its payment. The lien does not arise
from any agreement of the parties, but
is the creature of equity, and is estab-
lished solely for the eecurity Of the
vendor. 1t is privilege purely per-
sonal, and cannot exist in favor OF any
one but the vendor. It is not assignable,
even by express contract, and the as
signee of the right to recover the money
for which the land was sold cannot en-
force the lien.
These points the court holds are we'll
settled rules of law, and the question OF
their application to this case is dis
cussed.
The civil code, they say, provides that
q sale is contract by which, for pecu-
MARY consideration, person transfers
to another an interest in property, and
the subject OF sale must be property,
the title to which can be Immediately
transferred from the seller to the
buyer.
In this case when the alleged assign
ment was made, says the court, there
was no judgment, the title to which
could be Immediately transferred. For
this reason the assignment did not
transfer the cause of action, and could
at most only operate as an agreement to
assign or transfer the judgment when
recovered. This did not, according to
the court, bring the case within the
rules of law quoted. 1t was also held
that there was nothing in the objections
that the plaintiff had received the en-
tire purchase price of the land, and that
there was no lien, because the parties
had entered into collateral agreement
about another contract.
The second opinion was in q case
| from Santa Barbara, and is submitted as
follows:
Rogers vs. Duff ct al. Judgment
affirmed. This is an action to re-
cover the sum of $679.69 ad-
vanced by plaintiff, Santa Barbara
broker for defendants, at their instance
and request, in the purchase of Lima
beans and other produce, between July
26, 1889, and March 20, 1890.
The plaintiff states two causes of &C.
tion in the complaint, and defendant
Kitzmiller demurred to it on the ground
that it was uncertain and ambiguous,
and relies upon the order overruling his
| demurrer as one of the errors appealed
| from.
We discover no uncertainty or ambi-
| guilty in this language, and think the
| plaintiff set forth all that he was re-
quired to, under the provision of the
code, and this applies as we'll to the
statement of the second cause of action
as to that of the first. The demurrer
was properly overruled.
The contention of the appellant, that
the finding that the defendants are in.
debted to the plaintiff for labor per-
formed at their request. is a finding OUT
side of the issues, and is also held to be
| without merit by the court.
"There is no finding upon the issue
raised by the counter claim" says the
court, in conclusion, "and appellant in
sists that the omission to find upon that
issue 10 fatal one. We do not know,
and cannot assume that any evidence
was introduced upon that issue. This
court will not reverse for want of find
ing on an issue where there is no evi-
dence in relation to such ISSUE" (Wise
vs.. Burton, 73 CAL, ia, etc.,
Pronounced Hopeless, Yet Saved.
From . long letter written by Mrs. Ada T.
Hurd, Of Groton. 8. D., we quote: "Was taken
With bad cold, which settled on my. lungs
Cough set In and finally terminated in con
nould live Int ahnrf tir6o aa ,rr n ,aolf nv