21 Cal. 227 | Cal. | 1862
Norton, J. concurring.
This case is covered by the decision recently rendered in Baum v. Grigsby. The plaintiff seeks to enforce a vendor’s lien upon the premises described in the complaint as assignee of a portion of the unpaid purchase money. Such lien, as we have held in the decision mentioned, is not a specific absolute charge upon the property, but only an equitable right of the vendor to resort to it in case the purchase money is not paid. It is a right which does not spring from any agreement of the parties, but is the mere creature of a Court of Equity. It rests upon the natural justice of permitting the vendor to subject the property, which he has transferred, to the payment of the debt which constitutes the consideration of the transfer, there being no distinct and independent security taken for such debt. It is an equitable right which can be asserted only by one who has thus parted with his property. It is, therefore, the personal privilege of the vendor, given solely for his security, and is in its nature unassignable. (See cases cited in Baum v. Grigsby.)
It follows, that the judgment of the District Court must be reversed, and that Court directed to dismiss the action; and it is so ordered.