Avery v. Clark

Citations

• 87 Cal. 619
• 25 P. 919
• 1891 Cal. LEXIS 1035

Syllabus

<p>Vendor’s Lien— Equity. — A vendor’s lien, properly so called, is not the result of any agreement or intention of the parties, but is a simple equity raised by the courts for the benefit of a vendor of real estate, after he has parted with the title.</p> <p>Id. — Express Lien. — So long as the title is retained, the vendor has an express lien for the unpaid purchase-money, which exists by virtue of the contract of sale and reservation of the title, and for which equity makes no special provision, but leaves the parties to rely upon their contract.</p> <p>Id. — Assignment. — The express lien of a vendor who retains the title is capable of assignment and enforcement by his assignee; but the implied lien raised by equity, in favor of a vendor who has parted with the title, is a privilege purely personal to the vendor, and is not assignable even by express contract, nor does it pass to the assignee of the vendee’s obligation for the purchase-money.</p> <p>Id.—Waiver—Security for Purchase-money.—Although it is competent for the vendor to take security for the payment of the purchase price of the land which he has conveyed, and by express agreement not lose the right to resort to his implied lien, yet his taking such security is prima facie ,a waiver of the lien, and in the absence of some agreement to the contrary, the vendee will hold the land discharged from the vendor’s lien.</p> <p>Id.—Mortgage — Express Lien for Purchase-money — Relation.— The fact that a mortgage which the vendor takes at the time of the conveyance is expressed to be for the purchase-money of the land conveyed does not prevent a waiver of the vendor’s lien, nor can it have the effect to extend the mortgage lien by relation to the date of the contract of sale.</p> <p>Id.— Mechanics’ Liens — Mortgage — Priority — Sale of Equity.— The lien of a material-man for lumber furnished for a dwelling will take precedence of a mortgage of the land executed immediately upon a conveyance thereof, but after the