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ises, for the payment of said purchase money, which he claims in this action.

Wherefore the plaintiff demands judgment:

1. For the said sum of ...

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dollars, with interest 18...

2. That the said premises may be ordered sold for the payment thereof [etc., etc.]

§ 2370. Vendor against purchaser and his grantee and judgment creditors, to enforce lien.

[TITLE.]

Form No. 565.

The plaintiff complains, and alleges:

I. That he was owner in fee of the real property hereinafter described, and on the 18..,

........

day of

he sold the same to the defendant A. B., for the sum of ... dollars, and thereupon by his deed conveyed the same to the defendant A. B. [in fee], which premises are described as follows [description as in deed].

II. That the said A. B. paid the plaintiff

lars, part of said purchase money, and on the

18. at

promissory note for

payable on the

...

dol

day of

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III. That on the ........ day of

18...

18.., at

the plaintiff demanded payment of the defendant A. B. [of said note, or] of the residue of said purchase money, but he did not pay the same.

IV. That the said C. D. purchased of the said A. B. a portion of said premises, with the full knowledge that the said A. B. had not paid the balance of said purchase money, and took a conveyance from the said A. B. to him for the said premises so by him purchased of the said A. B.

V. That the said E. F. claims to have recovered judgment against the said A. B. for dollars, on the .....

day of

18.., in the ... county, state of

court, in the and has caused

execution to be issued thereon, and is proceeding to sell the part of said premises not sold to the said C. D., whereby the said plaintiff will wholly lose the balance of the said purchase money. as the said A. B. is wholly insolvent and unable to pay the same.

Wherefore the plaintiff demands judgment:

1. Against the said A. B. for the said sum of dollars, together with interest thereon from the of ..

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18.., and the costs of this action.

day

2. That in case the said A. B. shall not pay the said judgment, that the said premises may be sold, and so much of the proceeds as may be necessary be applied to the payment of the judgment so to be rendered.

$ 2371. Nature and extent of lien. A vendor's lien is valid against every one claiming under the debtor, except a purchaser or incumbrancer in good faith and for value.231 The lien which the vendor of real property retains, after an absolute conveyance, for the unpaid purchase money, is not a specific and absolute charge upon the property, but a mere equitable right to resort to it upon failure of payment by the vendee.232 The vendor's lien on the land conveyed is not lost by his taking the notes of the purchaser for the purchase money; 233 and the lien equally exists, whether the instrument amounts to a conveyance or merely to an executory contract.234 The execution of two notes for the amount due upon a note and mortgage, when the mortgage is not canceled, will not defeat an action for the foreclosure of the same, commenced after the second notes are due and unpaid.235 But a vendor's lien does not exist where a mortgage security is taken for the purchase money. The silent lien of the vendor is extinguished whenever he manifests an intention to abandon or not to look to it. And this intention is manifested by taking other and independent security upon the same land, or a portion of it, or on other land.238 A verbal agreement by the vendee to reconvey the land to the vendor, if he does not pay the purchase price, does not prevent the enforcement of a vendor's lien.237

231 Cal. Civil Code, § 3048. As to purchaser's lien for money paid, in case of a failure of consideration, see Cal. Civil Code, § 3050.

232 Sparks v. Hess, 15 Cal. 186; Hill v. Grigsby, 32 id. 58; and see Avery v. Clark, 87 id. 619; 22 Am. St. Rep. 272; Claiborne v. Castle, 98 Cal. 30; Waddell v. Carlock, 41 Ark. 523.

233 Cal. Civil Code, § 3046

234 Walker v. Sedgwick, 3 1. 398.

235 Creary v. Bowers, Cal. Sup. Ct., Jan. Term, 1862, not reported. 236 Hunt v. Waterman, 12 Cal. 301.

237 Gallagher v. Mars, 50 Cal. 23.

§ 2372. Purchase money is, in equity, a lien on land sold where the vendor has taken no separate security.238 Married women are included in this rule.239 And when the vendor has not conveyed the title, his position is analogous to that of a mortgagee.240

§ 2373. Right, when enforced. The equitable right may be enforced in the first instance, and before the vendor has exhausted his legal remedy against the personal estate of the vendee. The court, after determining the amount of the lien, can, by its decree, either direct a sale of the property for its satisfaction, and execution for any deficiency, or award an execution in the first place, and a sale only in the event of its return unsatisfied, as the justice of the case may require.241

§ 2374. Waiver of lien. The equitable lien which a vendor of real estate, after an absolute conveyance, has for the unpaid purchase money, is waived by the taking of a mortgage to secure the same, although the mortgage is void and can not be en- . forced.242 B. made a parol gift to his daughter R., who took and kept possession of the same twelve years. She then sold the land to M., receiving his notes therefor, and B., at her request, conveyed the land to M. As against the purchaser, R. had a vendor's lien.2 243

§ 2375. Averments in action.

A general averment in the complaint to enforce the vendor's lien, that the mortgage is defective as a security, is not sufficient to withdraw the case from the general rules of equity.244 In a bill in equity to enforce the lien, it is not necessary to allege the issuance of execution under a judgment at law previously obtained by the vendor

238 Salmon v. Hoffman, 2 Cal. 138; Hill v. Grigsby, 32 id. 55; Chilton v. Braiden's Adm'x, 2 Black, 458.

239 Id.

240 Salmon v. Hoffman, 2 Cal. 138; Hill v. Grigsby, 32 id. 55. 241 Sparks v. Hess, 15 Cal. 186; Hill v. Grigsby, 32 id. 58; Burgess v. Fairbanks, 83 id. 215; 17 Am. St. Rep. 230.

242 Camden v. Vail, 23 Cal. 533; see, also, Baum v. Grigsby, 21 id. 172; Remington v. Higgins, 54 id. 620; Claiborne v. Castle, 98 d. 30; Samuel v. Allen, id. 406.

243 Russell v. Watt, 41 Miss. 602. As to when transfer of contract waives the lien, see Cal. Civil Code, § 3047.

244 Hunt v. Waterman, 12 Cal. 305.

against the purchaser for the amount due, and the return of nulla bona to sustain the allegation of insolvency.245

§ 2376. Failure of performance.

It could not be a defense

that only one note was due, as that would be sufficient to show a failure of performance.246

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the said defendant made and executed his certain promissory note, in writing, in the words and figures following, to-wit [here copy note] whereby he promised to pay plaintiff the sum of dollars, with interest at the time and in the manner therein specified, in gold coin of the United States, and then and there delivered the said note to the said . plaintiff.

II. That at the time and place aforesaid, in order to secure the payment of said promissory note, the said defendant executed and delivered to the said plaintiff his certain instrument in writing, under seal, known as a chattel mortgage, a copy of which is hereto annexed as a part of this complaint, marked exhibit "A," which said chattel mortgage was made in good faith for the purpose aforesaid, without intent to defraud creditors or purchasers, and was verified, acknowledged, and recorded pursuant to the statute in such case made and provided.

III. That the property mentioned and described in said chattel mortgage and the schedule annexed consisted of [here describe property and where situated].

IV. That no proceedings have been had at law or otherwise for the recovery of said sum and interest, or any part thereof, and the same is still wholly owing and unpaid.

Wherefore the plaintiff prays judgment:

1. That the defendant be foreclosed of all interest, lien, and equity of redemption in said mortgaged property, to-wit, the said goods and chattels.

245 Walker v. Sedgwick, 8 Cal. 398. Sufficiency of complaint to enforce vendor's lien. See Burgess v Fairbanks, 83 Cal. 215; 17 Am. St. Rep. 230.

246 Creary v. Bowers, Cal. Sup. Ct., Jan. Term, 1862, not reported.

2. That the same be sold, and that the proceeds thereof be applied to the payment of costs and expenses of this action and of counsel fees not to exceed the sum of ....

dollars, and of the amount due on said note and mortgage, with interest thereon up to the time of payment, at the rate of per cent per month.

...

3. That the defendant be adjudged to pay any deficiency that may remain after applying all said money as aforesaid, and for such other and further relief as to this court may seem just in the premises.247

§ 2378. Assignment and delivery. Where a chose in action is assigned and delivered as collateral security for the payment of a debt due the assignee, the assignment and delivery to the assignee of the chose in action are necessary to give the latter full authority to readily control the security and make it available; but this does not necessarily constitute the transaction a chattel mortgage as distinguished from a pledge.248

§ 2379. Chattel mortgage. A., the owner of a quartzmill in Amador county, executed a mortgage on the same to B. Afterwards A. purchased at Sacramento a steam-engine and boiler, and to secure the purchase money, executed to C. a chattel mortgage on the same, and then transported them to Amador and placed them in the quartzmill, so that they became a part of the realty; it was held that C.'s mortgage on the steamengine and boiler had priority over the mortgage of B.249 If, at the time of the execution and delivery of a promissory note, the payor also gives the payee a bill of sale of personal property by way of mortgage to secure the note, and also delivers possession of the property, the payor has a right to have the property

247 Under section 246 of the California Practice Act (Cal. Code C. P., § 726), if commercial paper be mortgaged, the mortgage may be foreclosed, and the securities sold under the decree, and by sections 217 and 220 (Code C. P., §§ 688, 691), such securities may be seized and sold under execution on a judgment at law. Davis v. Mitchell, 34 Cal. 87; cited in Donohoe v. Gamble, 38 id. 352. As to what may be mortgaged, see Cal. Civil Code, § 2955, as amended in 1878. As to form of mortgage, and when void as to third persons, see id., §§ 2956, 2957.

248 Gay v. Moss, 34 Cal. 125.

249 Tibbetts v. Moore, 23 Cal. 208. As a general rule in cases of successive chattel mortgages upon the same property, the one first filed is entitled to priority. Pittock v. Jordan, 19 Oreg. 7.

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