Porter v. Brooks , 35 Cal. 199 ( 1868 )

By the Court, Crockett, J.:

This is an appeal from an order denying a motion to dissolve an attachment. The action is founded, in part, on a promissory note, and partly on a small book account. The defendant moved to dissolve the attachment on the ground that, after action brought, he had tendered to the plaintiff and his attorneys payment of the book account, which tenr der was refused; and he avers his readiness to pay at any time. In respect to the promissory note, he avers that the consideration of it was the following, to wit: That he procured from the plaintiff a conveyance for an undivided interest in Yerba Buena Island, and the note in contest was made to secure a part of the purchase money; that, though the conveyance was made to the defendant, and he executed his own promissory notes for the purchase money, the purchase was, in fact, made by him for the benefit of one Judson, to whom he immediately conveyed the property, without receiving any consideration therefor, and the title still remains in Judson; that Judson furnished the money to make a cash payment, which was made at the time of the purchase, and paid one of the promissory notes given for the purchase money, hut refuses to pay the note in contest. He claims that, upon these facts, the plaintiff has a vendor’s lien on the land, and therefore was not entitled to an attachment. The plaintiff filed an affidavit on the hearing of the motion, in which he alleges that he knew no one hut the defendant in the transaction relative to the island; that if Judson had any interest in the matter he was ignorant of it; but, on inquiring of Judson, since the filing of the plaintiff’s affidavit, he was informed that he only loaned the money to the defendant for the purchase of the island, on his promise to secure the loan; but, failing to obtain other security, he took the conveyance from the defendant, and was ready to reconvey at any time, on payment of the amount advanced.

On this showing the Court refused to discharge the attachment, and the defendant has appealed.

The statute authorizes an attachment in the event that the debt “is not secured by a mortgage, lien, or pledge upon real or personal property; or if so secured, that such security has been rendered nugatory by the act of the defendant.” (Practice Act, Sec. 120.) The appellant claims that the plaintiff has a vendor’s lien on the land, and for that reason was not entitled to an attachment on the promissory note. If it he conceded that the plaintiff had a vendor’s lien of a fixed and determinate character, the case would fall strictly within Hill v. Grigsby, 32 Cal. 55, in which this Court held that a person entitled to a vendor’s lien of that character as security for the debt could not maintain an attachment for the purchase money. But in that case the vendor had made no conveyance, and had withheld the title as his security, the contract being executory. In this case the title of the' plaintiff, whether good or bad, was conveyed to the defendant, and by him to Judson. If the plaintiff retained a vendor’s lien, under the circumstances, it was only an equitable right to resort to the land for payment, which right was liable to be defeated by an alienation or incumbrance, made by the vendee to a bona fide purchaser, for value, without notice. Is the vendor bound to follow the land with this equitable lien into the hands of a purchaser from the vendee, and thus test the purchaser’s rights, before he can resort to an attachment against the vendor? Is this such a lien as the statute contemplates ? Is it such a lien as secures the debt in the sense of the statute ? We think not.

The policy of the law is, that a creditor, holding a security by way of “ mortgage, lien, or pledge upon real or personal property,” shall not resort to the summary process of attachment until he has exhausted his security. But it must be a lien of a fixed, determinate character, capable of being enforced with certainty, and depending on no conditions. If the land has been alienated by the vendee, it is not incumbent on the vendor to go through a litigation with the purchaser, in order to ascertain whether he is a purchaser for value, without notice, before resorting to his attachment. The vendee, by alienating the land, has not only interposed an obstacle in the way of enforcing the lien, but has rendered it doubtful whether the lien is not wholly defeated. He cannot compel the vendor to solve this doubt by proceedings against the purchaser before suing out his attachment.

The purchaser (Judson) is no party to this action, and will not be bound by the judgment therein. If the attachment be dissolved, it may be that in a proceeding against Judson to enforce the vendor’s lion it will be proved that he holds the title by way of mortgage, taken in good faith and without notice, to secure an indebtedness from Brooks. This would defeat the vendor’s lien pro tanto. "Until that question is tried in a direct proceeding against Judson, it cannot be known with certainty whether or not the plaintiff has an available lien. We cannot try that question'in this cause on ex parte affidavits, and, as the case is now presented, the defendant has failed to show that the plaintiff has such a vendor’s lien as will defeat the attachment.

Order denying motion affirmed.