created by express reservation, and cannot be impaired by any act of the vendee. This is an express lien, existing by virtue of a contract executed between the parties, and is capable of assignment and enforcement by his assignee: Taylor v. McKinney, 20 Cal. 618. Such a lien is open and manifest to the world, and is entirely different from the secret, invisible lien which the law implies in behalf of the vendor when he parts with the title, and which is known only to the parties to the transaction, and those to whom they may communicate the fact. For such a lien equity makes no special provision, but leaves the parties to rely upon the contract which they have executed between themselves.

Whatever was the nature of the security held by Robbins prior to January 5, 1889, by virtue of the contract of sale between him and Mrs. Humeston, whether it was a vendor's lien or a lien in the nature of a mortgage, or whether, inasmuch as he did not himself have the title to the land, it was a security differing from either of these, when he took the promissory notes of Mrs. Humeston and her husband, secured by their mortgage upon the land which he then conveyed to her, he waived whatever lien he had prior to that date, and thereafter had only the lien that existed by virtue of the mortgage. The unpaid price of the land did not thereafter "remain unsecured otherwise than by the personal obligation of the buyer." In addition to her personal obligation, he had the personal obligation of her husband, together with their mortgage on the land to secure the same. By these acts his vendor's lien, if he had any, was extinguished, and his prior security was merged in the mortgage, and became an open, public, and express lien. Nor did the insertion in the mortgage of the clause, "This mortgage is given in part payment of the purchase-money of the within described property,' have the effect to extend the lien, by relation, to the date of the contract of sale. These words do not constitute or imply any agreement or intention for the preservation of a prior lien. The fact that the mortgage which the vendor takes at the time of the conveyance is expressed to be for the purchase-money of the land is none the less a waiver of his vendor's lien.

The plaintiff in this case has, however, only such rights of lien upon the land as Robbins could transfer, and such as he did transfer on the 19th of March, 1389, by his assignment of the notes and mortgage. He does not in his complaint allege

any assignment to him of any other lien than was created by the mortgage, his allegation being that "on the nineteenth day of March, 1889, for a valuable and sufficient consideration, said plaintiff purchased said mortgage and notes from said A. S. Robbins, who then and there duly assigned, transferred, set over, and delivered the same to the plaintiff"; and the finding of the court is in accordance with this allegation. We have seen above that as the assignee of Robbins he is not entitled to assert any vendor's lien in his own behalf.

Section 1186 of the Code of Civil Procedure declares that "the liens provided for in this chapter are preferred to any lien, mortgage, or other encumbrances which may have attached subsequent to the time when . . . . the materials were commenced to be furnished."

Inasmuch as the only lien which the plaintiff has is that of his mortgage, which did not attach to the land until January 5, 1889, and as the respondents commenced to furnish the materials for which their lien was allowed prior to that date, it follows that their lien was preferred to the lien of the plaintiff.

Nor do the provisions of section 2898 of the Civil Code give to the plaintiff, under the facts of this case, priority for the lien of his mortgage in disregard of this section. Section 1192 of the Code of Civil Procedure provides that "every building . . . . constructed upon any lands with the knowledge of the owner, or the person having or claiming any interest therein, shall be held to have been constructed at the instance of such owner or person having or claiming an interest therein, and the interest owned or claimed shall be subject to any lien filed in accordance with the provisions of this chapter," unless such person shall give notice that he will not be responsible for the same. Not only did Robbins fail to give any such notice, but the court finds that he "consented to and advised the construction of said dwelling-house." Although he was not the "owner" of the lands until January 5, 1889, yet by virtue of his contract with Griffes, he was until that date, and for several months prior to the time when the respondents began to furnish materials, a "person having or claiming an interest therein," and that interest, to its entire extent, became subject to their lien.

The principle upon which liens are allowed in favor of mechanics and material-men is, that their labor and materials have given value to the buildings upon which they have been

expended, and that it is inequitable that the owner of the land, who has contracted with them for such improvement, or who has stood by and seen the improvement in progress without making any objection, should have the benefit of their expenditures without making compensation therefor. Even in the absence of the foregoing provisions of the code, it would be in contravention of well-established rules if, under the facts of this case, the lien of Robbins should have priority over that of the respondents. Having advised the construction of the dwelling-house upon land then owned by him, under the most elementary principles of equity he would not be permitted to avail himself of this increased value for the purpose of enhancing his own security at the expense of those who had themselves given value to the land.

There was no error in allowing to Clark and Humphreys as a portion of their claim the sum of $190 for certain glass used in the building. The court found that Clark and Humphreys furnished to the defendant R. C. Humeston materials of the value of $2,037.84, to be used in the construction of the dwelling-house, and that "of and included in said amount is a claim for glass, amounting to $190, furnished by the firm of Schlesinger and Goldwater," and that Schlesinger and Goldwater refused to deliver the same until paid for. The court does not find that Schlesinger and Goldwater furnished the glass to Humeston, but does find that the material furnished by Clark and Humphreys to Humeston was of the above value, and that included in this amount was this claim for glass which Schlesinger and Goldwater refused to deliver until paid for, and that Clark and Humphreys paid Schlesinger and Goldwater for the glass. These findings are entirely consistent with the fact that Clark and Humphreys agreed with Humeston to furnish the glass for the dwelling-house, and for that purpose bought the same from Schlesinger and Goldwater, but that Schlesinger and Goldwater refused to deliver the glass to them until it was paid for, and that thereupon Clark and Humphreys paid for the glass, and furnished it according to their contract with Humeston. As the appeal is taken upon the judgment roll without any bill of exceptions, we must assume that the evidence was sufficient to support all the findings of the court.

The foregoing principles, which give priority to the lien of Clark and Humphreys, are also applicable to the lien of McCarthy. We cannot say that the description of the land in

the claim of lien filed by him is not "sufficient for identification": Code Civ. Proc., sec. 1187.

The judgment of the court below is affirmed.

PATERSON, J., and GAROUTTE, J., concurred.

Hearing in Bank denied.

VENDOR AND VENDEE. WHAT IS A VENDOR'S LIEN: See note to Schnebly v. Ragan, 28 Am. Dec. 199. Upon the conveyance of land, the purchase-money not being paid, and no distinct security for its payment being taken, a constructive trust arises, the vendee being considered as trustee of the land for the vendor until the purchase-money is paid, and thus an equitable lien accrues to the vendor: Acton v. Waddington, 46 N. J. Eq. 17; and the lien is in the nature of a mortgage, and must be for some certain amount: Balow v. Farmers' etc. Ins. Co., 77 Mich. 540. In Richards v. Arms etc. L. Co., 74 Mich. 57, it is decided that equity will not raise a vendor's lien where there was no agreement for a lien between the parties. In North Carolina, the doctrine of the vendor's lien does not prevail: Peck v. Culber son, 104 N. C. 425.

VENDOR AND Vendee.

VENDOR'S LIEN, HOW LOST: See note to Burgess v. Fairbanks, 17 Am. St. Rep. 232; note to Schnebly v. Ragan, 28 Ain. Dec. 199 et seq. The lien is waived pro tanto by accepting the note of a third person for a part of the purchase-money: Wisconsin etc. Bank v. Filer, 83 Mich. 493. So the lien may be lost by mingling the debts secured thereby with other debts: Erickson v. Smith, 79 Iowa, 374. The insolvency of the vendee does not extinguish the vendor's lien, which is based not merely upon an equity, but upon a contract between the parties which is enforceable: Devin v. Eagleson, 79 Iowa, 270.

VENDOR AND VENDEE - ASSIGNABILITY OF THE VENDOR'S LIEN. — The general rule is, that a vendor's lien is not assignable: Soule v. Hurlbut, 58 Conn. 511; Gruhn v. Richardson, 128 Ill. 178; Law v. Butler, 44 Minn. 482; note to Schnebly v. Ragan, 28 Am. Dec. 199 et seq. But where one sells realty to another, and the purchase-money is paid by a third person, to whom the vendee gives a note for the purchase-money, reserving a vendor's lien, such note and lien are good in the hands of the third person: Johnson v. Townsend, 77 Tex. 640. In Alabama, under the provisions of the statutes, a vendor's lien may pass to a transferee of the purchaser's notes by delivery only, without any indorsement or assignment in writing: Jones v. Lockard, 89 Ala. 575.

MECHANICS' LIENS. -The lien of a mechanic or of a material-man begins with the commencement of the work or furnishing the material under an express or implied contract with his employer, and attaches upon whatever estate the latter owns at the commencement of the work or the furnishing the materials, and takes precedence over all after-acquired liens, and any prior liens of which the mechanic or material-man had neither actual nor constructive notice: Tritch v. Norton, 10 Col. 337; Trammel v. Mount, 68 Tex. 210: 2 Am. St. Rep. 479, and note; Baker v. First Nat. Bank, 77 Iowa, 616: Lindsay v. Gunning, 59 Conn. 296. Mechanics' liens take precedence over each other in the order in which they are filed: Robertson v. Barrack, 80 Iowa 538. For the rule in Iowa as to subsequent mortgages made to a mortgagee in good faith, who had no notice of an intention to file a me

chanics' lien on the part of the mechanic, see Gilbert v. Tharp, 72 Iowa, 714. In Franklin etc. Bank v. Taylor, 131 Ill. 377, it is held that a mechanic's lien attaches when the contract is made with the owner of the property, and if a trust deed under which the property is held prohibits the creation of any lien thereon in respect to improvements put upon the property, such restriction is enforceable, and no lien can be placed thereon.

MECHANIC'S LIEN. As to what estates and interests can be affected by a mechanic's lien, see note to Lyon v. McGuffey, 45 Am. Dec. 678–680; Paulsen v. Manske, 126 Ill. 72; 9 Am. St. Rep. 532, and note 537, 538. In New Jersey, mechanics' liens extend only to legal estates, not to equitable interests: Dalrymple v. Ramsey, 45 N. J. Eq. 495; contra, Weaver v. Sheeler, 124 Pa. St. 473.

[IN BANK.]

IN THE MATTER OF AH YOU, ON HABEAS CORPUS.

[88 CALIFORNIA, 99.]

MUNICIPAL CORPORATIONS ORDINANCE, WHEN UNREASONABLE. - MUNICIPAL ORDINANCE PERMITTING A FINE NOT exceeding one thousand dollars to be imposed as a penalty for visiting a house of ill-fame, and also an imprisonment not exceeding six months, is unreasonable, not in harmony with the laws of the state, and therefore void, when those laws do not prescribe any penalty for this offense, and make the penalty for living in and about such a house imprisonment not to exceed ninety days, and for the keeping of such a house imprisonment not exceeding six months, or a fine not exceeding fine hundred dollars, or both.

Louis E. Phillips, for the petitioner.

William S. Barnes, for the respondent.

HARRISON, J. The petitioner was convicted in the police court of the city and county of San Francisco of a misdemeanor, for visiting a house of ill-fame, and on the seventh day of March, 1890, was sentenced to "pay a fine of four hundred dollars, and in default of payment thereof, that he be impris oned in the county jail of said city and county at the rate of one day for each one dollar of fine until said fine is satisfied." Under a commitment issued upon this judgment he was immediately taken into the custody of the sheriff, and has since that day been confined in the county jail of San Francisco.

Section 33, order No. 1587, as amended by order No. 1955, of the board of supervisors of the city and county of San Francisco, under which his conviction was had, is as follows: "It shall be unlawful for any person in the city and county of San Francisco to keep or maintain, or become an inmate of, or a visitor to, or in any manner to contribute to the support of, any disorderly house, or house of ill-fame, or place for