98 Cal. 30 | Cal. | 1893
On April 5, 1884, George Crossmore, now deceased, was the owner of the real estate in the complaint described, and on that day he sold the said real estate to defendant, Nicewonger, for the sum of eight thousand dollars, taking his promissory note therefor, payable four years from that date, with interest. Crossman executed a grant, bargain, and sale deed for said premises to Nicewonger, but said deed was never recorded. It appears that Nicewonger was indebted to one Castle in a sum of money exceeding ten thousand dollars, and about the twenty-eighth day of February, 1885, Castle, Cross-more, and Nicewonger met, and it was agreed between them that Nicewonger would surrender up his deed, and that the same should be destroyed, and that Crossmore should execute a' deed of said laud to Castle direct; that Castle should pay eight thousand five hundred dollars for the land by paying to Cross-more four hundred and eighty dollars interest on the note, and to Nicewonger twenty dollars, and by crediting Nicewonger with the sum of eight thousand dollars on his indebtedness to him, Castle, and that Crossmore should keep the note of Nicewonger and hold it for payment of the land, and look to Nicewonger personally for payment; and under that agreement the deed was executed by Crossmore and accepted by Castle. After this date Crossmore did not intend to claim and did not claim any lien whatever upon the land and premises in the complaint mentioned for the purchase-price thereof, but looked entirely to the note of defendant, Nicewonger, for payment therefor.
The foregoing facts were substantially found by fhe court, and are fairly supported by the evidence. This action is brought by the executor of the last will of Crossmore against Nicewonger, and the executors of the last will of Castle, to enforce a vendor’s lien upon the realty based upon the original transfer to Nicewonger. Plaintiff appeals from the judgment and order denying his motion for a new trial.
1. It is insisted that the default of the defendant, Castle, should have been entered, for the reason that the answer was verified by Nicewopger alone, he stating that he also made the
2. It is insisted that a vendor’s lien cannot be waived or released as long as the obligation exists, by parol declarations of the lien-holder. Appellant concedes that prior to the codes the text-books and cases were against his contention, but claims that a vendor’s lien is now a statutory lien by virtue of section 3046 of the Civil Code, and consequently stands upon a higher plane and is endowed with greater capabilities than the ordinary vendor’s lien recognized by equity courts. Section 3046 declares; “One who sells real property has a vendor’s lien thereon independent of possession for so much of the price as remains unpaid and unsecured otherwise than by the personal obligation of the buyer.” But this section is but a repetition of the common law, as are hundreds of other sections found in the codes. When it uses the term “ vendor’s lien,” it refers to the same vendor’s lien proper that is treated of in the textbooks, both modern and ancient. If other provisions of the code limit or enlarge rights under it, to that extent, it is not the vendor’s lien of the past, but to that extent only. Section 5 of the Civil Code provides that its provisions, “so far as they are substantially the same as existing statutes or the common law, must be construed as continuations thereof and not as new enactments.” (See Churchill v. Pacific Improvement Co., 96 Cal. 490.)
The recent cases of Avery v. Clark, 87 Cal. 619, and Gessner
3. It is insisted that Crossmore’s agreement with Castle and Uicewonger to waive the lien was made without consideration. The evidence indicates to the contrary, but as said in Avery v. Clark, 87 Cal. 619: “A vendor’s lien is not the result of any agreement or any intention of the vendor and vendee, but is a simple equity raised by courts for the benefit of the vendor of real estate. It is a privilege purely personal, and cannot exist in favor of any but the vendor.” If it is a simple equity or privilege, purely personal, something not dependent for life upon any agreement of the8 parties, a consideration is unnecessary to support a waiver of it. Under any view of the case, Crossmore cannot be allowed to come into a court of equity, asking to have a vendor’s lien foreclosed upon Castle’s J and, and claim that his release of the lien thereon was made without consideration. His promise to release the lien was the moving consideration to Castle to purchase. Without it he never would have bought the land. Crossmpre’s conduct placed Castle in his present position, and it would be most unfair if he should be allowed to make such a showing, and thereby visit loss upon an innocent party. Equity will not listen to a plea of “no consideration” upon any such state of facts.
For the foregoing reasons let the judgment and order be affirmed.
Harrison, J., and Paterson, J., concurred.