39 P. 799 | Cal. | 1895
Action to enforce a vendor’s lien. On March 28, 1891, plaintiff and defendant Pulschen entered into an agreement whereby the former was to sell to the latter a lot of land containing ten acres, situate in the county of Santa Clara, at the price of $5,500, of which price $3,200 was to be paid upon delivery of the deed, and the balance to be secured by two promissory notes of Pulschen—one for $1,000, payable eight months after date; and the other for
The court decided, as matter of law, “that the plaintiff, Mary A. Austin, took, had, and now has, a lien upon said premises as security for the payment of the sum of $2,300, the balance of said purchase price, together with interest thereon from April 17, 1891”; but further found that McDonald is a subsequent mortgagee of the premises for $4,500 in good faith, and for value, and without notice of the vendor’s lien or claim of lien; and, therefore, that the mortgage lien is superior to that of the plaintiff, and must be first satisfied; and so adjudged. The plaintiff brings this appeal from that part of the judgment which is in favor of the defendant McDonald, preferring his mortgage lien to her vendor’s lien.
Appellant contends that the findings of fact do not support the conclusions of law nor the judgment in favor of defendant McDonald; and so it appears to me. The court found that the bond of Bruce and Kent to Henderson, and that of Henderson to plaintiff, were duly recorded long before McDonald obtained the abstract of the record title, upon which he took the advice of counsel as above stated; that the plaintiff took actual possession of the lot on the twenty-fifth day of October, 1889, and continued in such possession until July 14, 1891; and that it was a part of the agreement between plaintiff and Pulschen that she should retain the possession until he paid her the balance of the purchase price. Prom these facts the court correctly drew the conclusion of law that plaintiff “took, had and now has, a lien upon the premises as security for the payment of the sum of $2,300, the balance of said purchase price,” but erred in the conclusion that McDonald was a mortgagee in good faith, without notice of plaintiff’s prior.lien. Plaintiff’s possession of the premises at the time he took the mortgage was, under the then existing circumstances, sufficient to put McDonald upon inquiry as to her rights, and whether Pulschen had fully paid the purchase money, knowing, as he did before he took the mortgage, that Pulschen was about to purchase the premises from her; and, in the absence of diligent and unavailing
Counsel for respondents contend that the presumption of such notice is rebutted by the following findings: ‘‘ That said McDonald, Jr., sent to Santa Clara county two different persons to grade and examine said property, and report the value thereof; that said persons reported that said property was good security for said $4,500 note.....But said McDonald, in the course of his inquiries of said property and title, discovered no fact sufficient to give' him any notice whatever of any rights on the part of the plaintiff herein to any lien or claim in and to said lands or any part thereof; and the agents who visited the property found the husband in the apparent possession of said premises, who was cultivating the land for and as an employee of said Pulschen.” In all this there is nothing indicating that any inquiry was addressed to the plaintiff, who was in actual possession of the lot, claiming to own it, and proposing to sell it to Pulschen. McDonald had actual notice from Pulschen that the latter was to purchase the lot from plaintiff, and was advised by his attorneys that she must convey to Pulschen in order to perfect his title. Of course, plaintiff’s husband resided with her on the lot, and may have appeared, to the “two different persons” whom McDonald sent to estimate and report the value of the lot, to be in possession, since it does not appear that either of those unnamed persons made any inquiry as to who was in the actual possession. They were sent to estimate and report the value of the property, and not to interview the plaintiff or her husband as to who was in actual possession, or when the purchase money would be paid. They reported the value of the property before the mortgage was
The finding that “McDonald, in the course of his inquiries of said property and title, discovered no fact sufficient to give him any notice,” etc., is but a conclusion of law, not warranted by the findings of facts. The findings do not show what facts McDonald discovered, nor, indeed, what inquiries, if any, he made. As before remarked, the onus was upon him to prove that he diligently inquired of all persons in possession, or apparently in possession. He should have inquired of the plaintiff, who is admitted to have been in possession, and also of her husband, if he was apparently in possession. Had he done so, the presumption is that he would have been 'fully informed of plaintiff’s lien on the land to secure payment of purchase money, which in legal effect is equivalent to actual notice of such lien. It follows that the vendor’s lien of the plaintiff is prior to that of the mortgage to McDonald, and is entitled to preference in payment from the proceeds of the sale of the mortgaged property.
I therefore think that part of the judgment appealed from should be reversed, and the cause remanded, with instruction to the court below to modify the judgment in accordance with this opinion.
We concur: Belcher, C.; Britt, C.
For the reasons stated in the foregoing opinion, that part of the judgment appealed from is reversed, and the lower court is instructed to modify the judgment in accordance with said opinion.