Sac. No. 348 | Cal. | Sep 14, 1897
Action to foreclose a vendor’s lien upon certain mining claims in Siskiyou county. Plaintiffs were the owners and conveyed the property to H. H. Hunter, one of the defendants, for the consideration of $2,000, of which $500 were paid in cash, and two promissory notes given for the balance. The notes falling due, plaintiffs commenced this action, and made certain holders of laborers’ liens, among them appellant, and also the vendees of the property, parties defendant. The court found as to the order in which the various liens should be satisfied, placing the lien of A. R. Campbell (appellant) subordinate to plaintiffs’ lien. Campbell appeals, and upon the judgment-roll alone. The pleadings are verified. The appeal is upon two grounds: (1) That no notice was given by plaintiffs that they were holders of a vendor’s lien, or had any interest in the said property as required by section 1192 of the Code of Civil Procedure. (2) That the Siskiyou Mining Company, being a corporation, and having hired appellant by the month, and not having paid him on a pay-day selected by said corporation, his lien is entitled to precedence over all other claims against said property except recorded mortgages and deeds of trust.
1. The lien of a recorded mortgage or deed of trust takes priority over a subsequent mechanic’s lien under section 1186 of the Code of Civil Procedure; and section 1192, requiring a person having or.claiming an interest in land on which an improvement is to be erected to give notice that he will not be responsible for the cost of the same, does not apply to nor affect the interest of a prior mortgagee under a recorded mortgage: Williams v. Mining Assn., 66 Cal. 193" court="Cal." date_filed="1884-12-09" href="https://app.midpage.ai/document/williams-v-santa-clara-mining-assn-of-balt-5441903?utm_source=webapp" opinion_id="5441903">66 Cal. 193, 5 Pac. 85. In the case before us the court found that plaintiffs had a vendor’s lien, and appellant does not dispute the fact. He seeks only to subordinate it to his own. It was also found by the court that plaintiffs’ vendee, and the purchaser of the property from plaintiffs’ vendee—the Siskiyou Mining Company—had notice of this lien and the unpaid balance due, and that appellant also had such notice during all the times he was subsequently employed by the company. A vendor’s lien for the unpaid purchase price of land may be enforced against the vendee and his grantees who have notice of the
2. Appellant, in his answer, sets up two defenses to plaintiffs’ claim of priority of lien. He claims a lien under the general mechanic’s lien law (Code Civ. Proc., c. 2, tit. 4, pt. 3); and he also in a further defense sets up what presumably was intended to be a claim of lien under the act of March 31, 1891 (Stats. 1891, p. 195), although the answer does not mention that act. The court apparently so treated it, and made findings, while not referring to that act, evidently having reference to it. The lien which was filed by appellant in the recorder’s office contained a clause apparently having reference to this act. The act referred to is as follows:
“Section 1. Every corporation doing business in this state shall pay the mechanics and laborers employed by it the wages earned by and due them, weekly or monthly, on such day in each week or month as shall be selected by said corporation.
This act makes no provision for filing a lien under it, and, as we have found that the lien filed under the general
*795 “Sec. 2. A violation of the provisions of section one of this act shall entitle each of said mechanics and laborers to a lien on all the property of said corporation for the amount of their wages, which lien shall take preference over all other liens, except duly recorded mortgages or deeds of trust.
If it be said that section 2011 of the Civil Code supplies by presumption the fact as to time of payment, the answer is that we are not permitted to add any fact to the findings by presumption, nor can we presume that there was “the absence of any agreement” as to when appellant was to be paid, which fact is the basis for resorting to the presumption as to when the wages were due. Besides, as was said in 110 Cal. 627, 43 Pac. 14, it was incumbent upon the appellant to bring himself within the terms of the statute, “and to show that the wages earned by him were ‘due weekly or monthly.’ ” The owners of the property do not appeal, and no objection is made to the decree by any of the parties adjudging appellant entitled to a lien. The court made his lien subordinate to that of plaintiffs, in which there was no error. It is therefore recommended that the judgment be affirmed.
We concur: Haynes, C.; Searls, C.
For the reasons given in the foregoing opinion the judgment is affirmed.