ages for a breach of the contract. This instruction is said to have been erroneous, for the reason that one of the defenses to the action was that plaintiff and defendant became satisfied that Hanscom could not be dispossessed in time to put in a crop, and therefore all negotiations for leasing were off and abandoned by consent of the parties; that this defense was a question of fact to be determined by the jury, and was wholly ignored by the instruction. The answer is that the court had already charged the jury, as one of the necessary elements of plaintiff's case, that it must be shown that "defendant refused or neglected to carry out the terms of the agreement against the will of plaintiff;" and if defendant desired any further or more explicit instruction in reference to the abandonment of the negotiations for a lease he should have asked for such an instruction. Not having done so, he cannot now be heard to complain that it was not given.

4. It is also claimed for the appellant that the instructions upon the question of damages were conflicting, and therefore erroneous. We are unable to see any necessary conflict in these instructions. They seem to us to have stated the law to the jury quite fully and fairly, and without any substantial

error.

We conclude, therefore, that the judgment and order should be affirmed.

We concur: FOOTE, C.; HAYNE, C.

BY THE COURT. For the reasons given in the foregoing opinion the judgment and order are affirmed.

(74 Cal. 583)

(No. 12,154.)
January 26, 1888.)

BANCROFT v. COSBY et al. (Supreme Court of California. VENDOR AND Vendee-VenDOR'S LIEN-EFFECT OF TRANSFER OF NOTE-RETRANSFER TO VENDOR.

Civil Code Cal. § 3047 provides that "where a buyer of real property gives to the seller a written contract for the payment of all or part of the price, an absolute transfer of such contract by the seller waives his lien to the extent of the sum payable under the contract; but a transfer of such contract in trust to pay debts, and return the surplus, is not a waiver of the lien. Held that, where a vendor indorsed and delivered a purchase-money note to a third person, and the note, not having been paid, was transferred back to the vendor, the lien was suspended only, and revived on such retransfer.

Commissioners' decision. In bank. Appeal from superior court, Fresno county; M. K. HARRIS, Judge.

S. A. Holmes, for appellants. Wharton & Short, for respondent.

FOOTE, C. This is an action to enforce a vendor's lien for the sum of $50 and interest. The vendor, after conveying the land to the vendee and receiving the latter's promissory note for the balance due, indorsed and delivered the note to a third person. The note, not having been paid, "came back to the plaintiff's possession as his own." The question is whether a vendor's lien exists. In many of the states, and in California, it is held that the lien is a personal privilege of the vendor, and is not assignable. Baum v. Grigsby, 21 Cal. 172; Williams v. Young, Id. 227; Ross v. Heintzen, 36 Cal. 321. In the latter case the court speaks of the lien being "extinguished" by the transfer; but no such question was before the court, and in all probability it meant only to say that the lien was not assignable. The case is not inconsistent with the theory that upon a transfer of the debt the vendor's right is suspended merely. Lord ELDON said in a leading case that what is called the vendor's lien "goes upon this: that a person having got the estate of another, shall not, as between them, keep it and not pay the consideration." Mackreth v. Symmons, 15 Ves. 329. See, also, 2 Story, Eq. Jur. § 1219; Baum v. Grigsby, 21 Cal. 172. It is not a specific lien, but is a mere equity capable

of acquiring the force and efficacy of a lien under certain circumstances. Green v. Demoss, 10 Humph. 371; Williams v. Young, 21 Cal. 228. The right is worked out upon the notion that to prevent so great a wrong to the vendor a court of equity will impress a trust upon the land. Preston v. Ellington, 74 Ala. 138.

This trust will not be extended beyond the purpose for which it was raised, viz., the protection of the vendor. But, on the other hand, it ought to be carried as far as is necessary for his protection; in other words, when the vendor after having assigned a note for the purchase money, has been forced to take it up, the lien ought to be revived. Every consideration of justiceevery consideration which induced courts of equity to create the lien in the first instance-operates to its application to such a case. For if the note was transferred in satisfaction of a debt, the debt would revive upon the nonpayment, and the vendor would be in precisely the same situation that he was in before the transfer; and if he is compelled to pay the note to some subsequent holder he has still stronger grounds for relief. Lord ELDON, in one case, enforced a lien where the vendor had transferred the note, and taken it up again, saying:. "That the note was discounted amounts to nothing; it was incidental to the nature of the security, and did not vary what it in substance was,-evidence of an intention to pay at four months. I do not believe that either of the parties had this refined equity in that contemplation; but I do not feel that I can refuse to give effect to it." Ex parte Loaring, 2 Rose, 79. See, also, Cotten v. McGehee, 54 Miss. 510; and the dicta in Green v. Demoss, 10 Humph. 375; Lindsay v. Bates, 42 Miss. 400, 401; White v. Williams, 1 Paige, 506. In some states the question whether the vendor's lien is extinguished by a transfer of the debt is made to turn upon whether the vendor is liable on the note. Hallock v. Smith, 3 Barb. 272; Smith v. Smith, 9 Abb. Pr. (N. S.) 425, 426; Bankhead v. Owen, 60 Ala. 457; Preston v. Ellington, 74 Ala. 134; Shall v. Biscoe, 18 Ark. 142.

In California, the Civil Code contains the following provision: "Sec. 3047. Where a buyer of real property gives to the seller a written contract for payment of all or part of the price, an absolute transfer of such contract by the seller waives his lien to the extent of the sum payable under the contract, but a transfer of such contract, in trust to pay debts, and return the surplus, is not a waiver of the lien." Looking at the mere language of this provision, it might seem that a transfer of a note upon which the vendor is liable as indorser destroys his lien. But this, we think, would be too narrow a view, and one which would defeat what in the light of the decisions seems to us to be the object of the lien. We think it is not doing violence to the language to hold that a transfer of the note by an indorsement which makes the vendor liable for the debt is not an absolute transfer, within the meaning of the section, and that, in such case, the lien is merely suspended, and revives when the note is taken up by the vendor.

With reference to the point as to the homestead it is sufficient to say that we do not think it arises upon the pleadings.

We therefore advise that the judgment be affirmed.

We concur: BELCHER, C. C.; HAYNE, C.

PER CURIAM.

ment is affirmed.

(74 Cal. 593)

For the reasons given in the foregoing opinion the judg

SUTRO. DUNN. (No. 12,352.)

(Supreme Court of California. January 27, 1888.)

STATES AND STATE OFFICERS-STATE BONDS-BONA FIDE PURCHASERS-NOTICE. The state of California, under act of April 25, 1857, issued certain bonds for the payment of expenses of an Indian war, stating on their face that they were payable

"only out of any money hereafter to be appropriated by congress for the payment of such expenses." Held, that a purchaser is charged with the knowledge of the provisions of the act of 1857, and the state comptroller cannot be compelled to issue a warrant for their payment until congress creates a fund for that purpose. Department 1. Appeal from superior court, Sacramento county; J. W. ARMSTRONG, Judge.

Sutro petitioned to compel J. P. Dunn, state comptroller, to issue a warrant to pay Indian war bonds. The petition was denied, and petitioner appealed.

McKune & George, for appellants. G. A. Johnson, Atty. Gen., R. T. Devlin, and R. M. Clarken, for respondent.

PATERSON, J. This is a special proceeding to compel the defendant, Hon. J. P. Dunn, comptroller, to draw a warrant in favor of plaintiff for the sum of $4,172.56 upon the Indian war bond fund for the payment of certain bonds, all of which are in the following form:

"No. 813.

$1,000.

"Bond of the state of California, for war indebtedness, in conformity with an act authorizing the treasurer of state to issue bonds in payment of the expenses incurred in the suppression of Indian hostilities in certain counties in this state, approved April 25, 1857.

"The State of California promises to pay to the order of the governor thereof the sum of $1,000, to be paid only out of any money hereafter to be appropriated by congress for the payment of such expenses. This bond is transferable by assignment by the owner thereof, or by his attorney in fact.

"In testimony whereof the treasurer, comptroller, and governor have respectively signed, countersigned, and indorsed these presents, and the gov ernor has caused the seal of the state to be affixed hereto this twenty-first day of May, A. D. 1862. D. R. ASHLEY, Treasurer.

"G. R. WARREN, Comptroller. "Indorsed:

[Seal.] "LELAND STANFORD, Governor.

"Issued to A. L. Pardee. Certificate, 1,238."

The plaintiff is an innocent purchaser for value from Pardee, so far as legal or mercantile innocence can be considered in connection with such instruments. The court found that he purchased without notice of any defects or infirmity in said bonds other than those disclosed by the terms therof, and by the several statutes of the state of California and the act of congress mentioned herein, namely: St. 1857, p. 262; St. 1861, pp. 298, 409; St. 1862, pp. 181, 329; St. 1863, p. 399; St. 1867-68, p. 601; Act Cong. 12 St. at Large 1861, p. 199. The statements in the bonds put the purchaser upon inquiry and he took them subject to all defects therein, and subject to all the conditions imposed by the acts of the legislature and of congress upon the subject referred to in the act of April 25, 1857. Section 3088, Civil Code; Cagwin v. Hancock, 84 N. Y. 532; Craig v. Andes, 93 N. Y. 405; Daniel, Neg. Inst. §§ 34, 52, 437; Bank v. Steinmitz, 64 Cal. 314. It appears from the face of the bonds that payment was dependent entirely upon the condition that congress should make an appropriation therefor. This contingency has never occurred. No fund of the state has ever been pledged for their payment. The bonds are dated May 21, 1862. Congress has not made any appropriation for the payment of claims for the destruction of property. No fund has been created in any way out of which such losses can be paid. The only provision ever made by congress is that found in the terms of the act of March 2, 1861, "for payment for services of volunteers, and for supplies, transportation, and personal service furnished or rendered to said volunteers." The purchaser knew, or was bound to know, that under the statute bonds could issue for two purposes only-First, for services, etc.; second, for the destruction of prop

erty. He was charged with the knowledge that the bonds could be paid only out of such appropriations as congress might make therefor. Congress has made an appropriation for the payment of the first class of debts or obligations mentioned, but has made no provision for the payment of the second class. Respondent cannot be compelled to draw a warrant for the payment of the bonds set out in the petition until a fund for the payment thereof has been created by congress.

Judgment affirmed.

We concur: TEMPLE, J.; MCKINSTRY, J.

(74 Cal. 603)

NATIONAL BANK OF MILLS & Co. v. HEROLD. (No. 11,660.)
(Supreme Court of California. January 27, 1888.)

1. STATES AND STATE OFFICERS -TREASURER-WARRANTS - OFFICIAL DESIGNATION OF PAYEE.

Where a warrant by the state comptroller on the state treasurer showed that it was drawn under a section of the law authorizing issuance of warrants to the clerk of the supreme court only, and was issued to the clerk by name, the omission of his official designation was not material.

2. SAME-NEGOTIABILITY OF WARRANT.

A warrant by a state comptroller on a state treasurer is not negotiable, but may be transferred by delivery, so as to authorize the holder to demand payment, and institute suit thereon.1

3. SAME PRESUMPTIONS AS TO AMOUNT CALLED FOR IN WARRANT.

In an action to compel the state treasurer to pay a warrant drawn by the state comptroller in favor of the clerk of the supreme court, it will be presumed that the amounts in the clerk's account have been paid, there being no proof to the contrary by defendant.

THORNTON, J., dissenting.

In bank. FLEET, Judge.

Appeal from superior court, Sacramento county; W. C. VAN

G. A. Johnson, Atty. Gen., for appellant. Beatty, Benson & Oatman, for respondent.

PATERSON, J. This is a special proceeding to compel the defendant, the state treasurer, by mandate to pay a certain warrant issued by the state comptroller. The warrant was first presented for payment to Hon. D. J. Oullahan, who was at that time the treasurer, and upon his refusal to cash the same this proceeding was commenced. Judgment went for petitioner in the court below, Oullahan appealed, and his successor, Herold, has been substituted as defendant herein. The following is a copy of the warrant: "COMPTROLLER'S WARRANT.

"$1,213.

SACRAMENTO, CAL., April 10, 1885. "The treasurer of state will pay out of the general fund, to the order of J. W. McCarthy, one thousand two hundred and thirteen dollars.

"JOHN P. DUNN, Comptroller.

'Payable out of the appropriation for expenses of the supreme court, under section 47, C. C. P., thirty-sixth fiscal year.

"Indorsed:

"Pay to I. W. Hellman, or order.

J. W. MCCARTHY.

"ISAIAH W. HELLMAN."

'As to what constitutes a negotiable instrument, see Hughitt v. Jonhson, 28 Fed. Rep. 865, and note; Chandler v. Carey, (Mich.) 31 N. W. Rep. 309, and note.

Appellant claims that he was justified in his refusual to pay the warrantFirst, because it was not issued to McCarthy, clerk of the supreme court, but to J. W. McCarthy, individually; second, because such warrants are not negotiable, and they cannot be assigned, at least not without an assignment of the indebtedness; third, it is not shown that the parties with whom the clerk contracted, and to whom the several amounts of the account were due, have been paid.

1. It is expressly stated in the answer that "said warrant No. 8,706 was drawn in favor of and delivered to J. W. McCarthy, clerk of the supreme court." The omission of the comptroller, therefore, to describe the official character of McCarthy in the warrant is not material. The warrant shows that it was issued under section 47, C. C. P., which authorizes the issuance of warrants to no one except the clerk. It was a matter of record that the account upon which the warrant was issued had been duly certified to be correct, and that thereafter the amount claimed hád been audited, allowed, and approved by the board of examiners. The treasurer knew, as matter of fact, that the McCarthy named in the warrant was the clerk of the supreme court, knew his signature, and unquestionably would have paid the warrant if presented by McCarthy himself.

2. Appellant cites a large number of authorities in support of his proposition that warrants like the one above set forth are not negotiable, and that a purchaser gains no greater rights than the payee of the warrant had. This may be admitted, but what boots it? In the leading case cited by appellant, Mr. Justice FIELD says: "The warrants being negotiable in form are transferable by delivery so far as to authorize the holder to demand payment of them and to maintain in his own name an action upon them. But they are not negotiable instruments in the sense of the law inerchant, so that, when held by a bona fide purchaser, evidence of their invalidity or defenses available against the original payee would be excluded. The transferee takes them subject to all legal and equitable defenses which existed to them in the hands of such payee.” Wall v. County of Monroe, 103 U. S. 77. In Martin v. San Francisco, it was held, it is true, that even where there was a regular assignment of such a warrant by the person to whom it was issued the assignee could not maintain an action upon it without an assignment of the original indebtedness, (16 Cal. 285,) but it has since been said that an indorsement and delivery of the warrant would be in equity the assignment of the debt, and an authority to the assignee to receive the money. Dana v. San Francisco, 19 Cal. 491; People v. Gray, 23 Cal. 127.

The answer of defendant alleges two grounds of defense: First. That the warrant was issued without authority of law; second, that it could not be transferred by indorsement. In what respect it is claimed to be without authority of law we have not been informed. In his brief, appellant makes the following fair statement of the case, which we think is a complete answer to his first ground of defense: "It appears from the petition that said warrant was issued to the said J. W. McCarthy under the authority of section 47, C. C. P. Consequently the amount called for was to have been disbursed by him, as provided for in said section. It also appears that up to the time of drawing the warrant the provisions of said section had been complied with, and that the bill was approved for the full amount by the board of examiners. At the time the warrant was issued, and at the time it was presented for payment there was an appropriation, as provided in section 47, C. C. P., and said appropriation was unexhausted. After the issuance of the warrant, said McCarthy sold the warrant to I. W. Hellman for a valuable consideration, and indorsed on the back of the warrant the following: Pay to I. W. Hellman, or order. J. W. MCCARTHY.' Said Hellman afterwards sold the warrant to the plaintiff, and indorsed the same in blank, as follows: 'ISAIAH W. HELLMAN.' The court ands that both said Hellman and plaintiff purchased said warrant in good faith and for value."