Hunt v. Waterman
12 Cal. 301
Cal.
1859
Check Treatment
Baldwin, J.,

delivered the opinion of the Court—Terry, C. J., and Field, J., concurring.

The question in this case is directly presented, whether, in this *305State, a vendor’s lien exists when a mortgage security is taken for the purchase money. The decisions of the various Courts have been numerous on this branch of jurisprudence, and are not harmonious. The better rule, supported by the weight and number of the authorities, is to hold the silent lien of the vendor extinguished, whenever the vendor manifests an intention to abandon or not to look to it; and it is held that he does this whenever he takes other and independent security upon the same land, or a portion of the same land, or on other land. When he looks to other security he loses this tacit lien. Brown v. Gilman, 4 Wheat. 290 ; 1 Mason, 212; Fisk v. Howland, 1 Paige Ch. R. 20, where the authorities, English and American, are fully reviewed.

The editor of Leading (Jases in Equity, reviewing the case of Macreth v. Simmons, (15 Vesey, 350) cites and reviews a very great number of cases which decide and discuss the general doctrine, and this particular point. The case of Boos v. Ewing, (17 Ohio, 521) cited by respondent, seems to be the other way, and is noticed by the editor as a case opposed to the general current of decision.

The fact, if we regard the averment of the bill as properly stating it, that the mortgage was defective in itself, or its acknowledgment, does not help the plaintiff. For, as we have seen, the question is as to the intention of the vendor, which is as well shown by an informal act as one regularly done. If the mortgage was properly executed, it may be enforced, of course; but the whole case seems to rest here on the validity of the vendor’s lien. It is not stated how, or in what, the mortgage was defective, and this general and loose averment is not sufficient to withdraw the case from the influence of the general rule we have announced.

That the case may be fairly tried upon its merits, in view of the law as we have held it to be, the decree is reversed, and the cause remanded for further proceedings on another trial.