Austin v. Pulschen , 5 Cal. Unrep. 176 ( 1895 )

McFARLAND, J.

After full consideration of this cause in bank we are satisfied with the opinion delivered and the conclusion reached in department: 4 Cal. Unrep. 988, 39 Pac. 799. The petition for a rehearing in bank is mainly concerned with the proposition that Mrs. Austin, after her sale to Pulschen, conveyed the land to Rosencrantz, and thereby destroyed her vendor’s lien. But there is no finding that she conveyed to Bosencrantz. The court finds that at a certain time Pulschen made a deed of the premises to Bosencrantz, which was intended and understood to be a mortgage to secure $600, It is also found that shortly afterward plaintiff sold some personal property to Bosencrantz, and also “signed and delivered to said Bosencrantz two unacknowledged deeds to said premises”; but it is also found that she did not by said deeds “waive any lien which she had or. claimed to have upon said premises.” What kind of “deeds” those were does not appear. A deed is simply a sealed instrument, and may be a grant, a mortgage, a bond, or any kind of contract. In some connections a “deed to said premises” might, no doubt, be construed to mean an absolute conveyance of the fee; but here the court evidently did not use the phrase in that sense. It is immediately added that by said deeds plaintiff did not waive her lien; and, moreover, it is found that Bosencrantz, by said deeds or otherwise, became the owner of the premises; but it is adjudged “that said Bosencrantz, being a mortgagee only of said premises, must account to said plaintiff for all the profits,” etc. Whatever those deeds were—whether mortgages or otherwise—they disappear from the case; and there is no appeal by plaintiff from the judgment in favor of Bosencrantz as a mortgagee.

There is nothing in the point that the money borrowed by Pulschen from McDonald—$2,500—was paid to the original owners, Bruce and Kent. That payment was in accordance with the contract between plaintiff and Pulschen. When that payment had been made to avoid a circuity of conveyance, Bruce and Kent, at plaintiff’s request, conveyed directly to Pulschen, and plaintiff and others, supposed to have some shadow of title, joined in the conveyance. But her vendor’s lien for the balance of the purchase money coming to her was as perfect as if Bruce and Kent had conveyed to her before she made her contract with Pulschen. That part of the judgment appealed from is reversed, and the lower court is instructed to modify the judgment in accordance with the opinion of Mr. Commissioner Yanclief delivered in department.

We concur: Garoutte, J.; Yan Fleet, J.; Harrison, J,