Gessner v. Palmateer

Citations

• 89 Cal. 89
• 26 P. 789
• 1891 Cal. LEXIS 779

Syllabus

<p>Vendor’s Lien— Assignment op Debt — Transfer of Security — Attachment.— Although the lien implied by law in favor of a vendor who has parted with the legal title and taken no security for the purchase-money is not a specific, absolute charge upon the property, but is personal to the vendor, and does not pass by a transfer of his claim for the purchase-money, yet where the vendor retains the legal title under an executory contract for the conveyance of the land upon payment of the purchase-money, he holds it as security for the purchase-money, in the nature of</p> <p>a mortgage, and the assignee of notes given for the purchase-money is entitled to the security, as an incident to the debt, and cannot attach property thereupon, without showing that the security has become valueless.</p> <p>Id. —Dissolution of Attachment.— Where a promissory note was given in part payment of land sold under a written contract, upon condition that no deed should be delivered until the full payment of the purchase price, and the assignee of the note, in an action against the maker, had the property attached upon an affidavit stating that the note was unsecured by mortgage or lien upon real or personal property, a motion to discharge the attachment should be granted, where the affidavit of the defendant, in support of the motion, states the true facts in the case and shows that the plaintiff purchased the note with knowledge thereof.</p>