Porter v. Brooks

Citations

• 35 Cal. 199

Syllabus

<p>Writ op Attachment,—When Proper to Issue.—The policy of the law is, that a creditor holding a security by way of “mortgage, lien, or pledge, upon real or personal property,” shall not resort to the summary process of attachment until ho has exhausted his security. But such lien or pledge must be of a fixed, determinate character, capable of being enforced with certainty, and depending on no conditions.</p> <p>Idem—Vendor's Lien.—A vendor's lien for the unpaid purchase price of a tract of land, where the land had been conveyed by the vendee to a third party before action brought against the former by the vendor to recover said purchase price, is not of such fixed and determinate character as to bar the plaintiff in such action the right to a writ of attachment against the property of the defendant therein.</p> <p>Per Sawyer, C. J., concurring specially :</p> <p>Idem.—A vendor's claim to have the purchase money charged upon the land conveyed, before a complaint is filed to enforce it, is not a lien securing the debt, within the meaning of the terms used in the one hundred and twentieth section of the Practice Act.</p>