conclusion that, taken as a whole, the instructions given by the court to the jury were in a remarkable degree full, fair, lucid, and free from confusion, and that we are entirely satisfied that the jury were in no way misled thereby to the appellant's injury.

The appellant makes the further contention that its demurrer to the plaintiff's complaint upon the ground of uncertainty should have been sustained.

There are some uncertainties in the allegations of both counts of said complaint with respect to the specific services performed by the plaintiff which might well have been removed by a further amendment to his complaint; but the record shows that at some time during the pendency of the action the defendant was furnished by plaintiff with a bill of particulars which set forth specifically the services upon which his claim for compensation was based, and which in that respect eked out the uncertainties in his pleading. The items of this bill of particulars were made the subject of exhaustive examination during the trial; and there can be no contention that the defendant was in any way injured by the alleged uncertainties in the plaintiff's original pleading. This being so the objection which is now urged thereto cannot be relied upon for a reversal of this case.

There are a large number of other exceptions and objections to the regularity of the trial of this cause which it would be unprofitable, not to say impossible, to review in detail. It is sufficient to say that in our opinion none of these go to the substantial merits of this controversy, or furnish a sufficient reason for the reversal of this cause upon appeal. The case was fully, fairly, and ably presented before an impartial judge and before a jury called at the defendant's own suggestion, and against the fairness of which no hint of bias or prejudice is urged. This being the case, we have been able to discover no sufficient reason why the verdict of the jury and the judgment and order of the trial court should be disturbed upon appeal.

Judgment and order affirmed.

Lennon, P. J., and Kerrigan, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 28, 1918.

35 Cal. App.-47

[Civ. No. 2235. First Appellate District.-December 31, 1917.]

J. C. FERGER, Respondent, v. HARRY W. ALLEN et al., Appellants.

VENDOR'S LIEN-NATURE OF.-It is not essential to the right to claim a vendor's lien that an intention on the part of the vendor to create and retain unto himself the right to such lien should be expressly declared. The right is given in equity and in law by the very nature of the transaction, and consequently exists without regard to the express agreement of the parties.

ID.

Knowledge AND ACQUIESCENCE IN MORTGAGE OF PROPERTY - DEFEAT OF LIEN.-In view of section 3048 of the Civil Code, declaring that a vendor's lien is valid against everyone claiming under the debtor except a purchaser or encumbrancer in good faith, the right to claim such a lien is defeated by the vendor's knowledge of and acquiescence in the hypothecation of the property, as against the mortgagee.

L. ASSIGNMENT FOR BENEFIT OF CREDITORS - EXTINGUISHMENT OF LIEN. An assignment for the benefit of creditors and a conveyance made thereunder prior to any endeavor on the part of the vendor to declare and establish his lien will prevail over and operate to defeat the right to claim the lien where the creditors become subscribing parties to the assignment and thereby accept the same by assenting to and claiming the benefit of its provisions, since they assume by virtue of the assignment the character of lien claimants.

APPEAL from a judgment of the Superior Court of Fresno County. H. Z. Austin, Judge.

The facts are stated in the opinion of the court.

N. Lindsay South, for Appellants.

U. Grant Hayden, for Respondent.

LENNON, P. J.-This is an appeal from a judgment in favor of plaintiff quieting title as against the defendants to certain described real property situate in the county of Fresno.

The facts of the case as revealed by the pleadings and proof are substantially these: The defendants sold the real property in question to one Heimbach for the agreed price of nine hundred dollars, and upon a conveyance of the prop

erty by deed dated November 25, 1912, Heimbach paid to the defendants three hundred dollars in cash on account of the purchase price, and for the balance due thereon gave his unsecured note, dated November 27, 1912, to the defendants in the sum of six hundred dollars. This sum by the terms of the note was to be paid in installments "at the rate of $18 a month." It was Heimbach's desire to build a home upon the property. This desire was made known to the defendant Harry W. Allen, and the conveyance was accordingly made to Heimbach absolute in form to enable him to obtain a loan upon the property of a sum sufficient to defray the cost of the desired building. Thereafter Heimbach, with the tacit consent of said defendant, executed a deed of trust, dated December 11, 1912, conveying the property in question to the Pacific States Savings and Loan Company as security for a loan of two thousand five hundred dollars, which sum, it seems to be conceded, was expended in the erection of a building upon the property. Thereafter Heimbach became financially involved as a result of the business transactions of the Heimbach Company, of which he was a copartner, and to such an extent that the plaintiff Ferger and other creditors of the copartnership attached certain property of Heimbach. The attachment, however, was subsequently released upon Heimbach executing an assignment, dated July 17, 1913, of his property, real and personal, including the real property in question, to the plaintiff Ferger, as trustee for the benefit of Heimbach's general unsecured creditors.

This assignment was made pursuant to and as a part of a contemporaneous trust agreement executed and signed by Heimbach and some thirteen of his general unsecured creditors, wherein it was agreed that each of the creditors named thereby assigned the accounts due and owing them from Heimbach of the date of the agreement to the plaintiff Ferger for collection, and further agreed that the proceeds thereof were to be distributed pro rata among the creditors after paying preferred claims.

Simultaneously with the execution of the assignment and accompanying the trust agreement as a part thereof and pursuant to its terms, Heimbach and his wife executed to plaintiff Ferger a mortgage of even date on the property in question, which was duly recorded July 22, 1913.

On the nineteenth day of February, 1914, Heimbach and his wife, for the stated consideration of ten dollars, but in fact for the purpose of enabling the plaintiff Ferger to consummate negotiations for the sale of the property pursuant to the terms of the assignment and trust agreement, executed to the plaintiff Ferger a quitclaim deed to the property in question, and on January 13, 1915, the plaintiff Ferger instituted this action to quiet his title as against the defendants to the same property. On the 23d of June, 1914, the plaintiff Ferger, pursuant to the terms of an executory contract of purchase and sale, sold the property in question to one J. F. Cullen for the agreed price of four thousand two hundred dollars, of which eight hundred dollars was paid in cash, and the balance agreed to be paid in specified installments. This contract of purchase and sale was placed on record on June 27, 1914. On June 26, 1914, the defendant Harry W. Allen, upon behalf of himself and his wife, the defendant Claribel Allen, filed for record with the recorder of Fresno County their notice and claim of a vendor's lien upon the property in question.

The record contains some evidence which tends to show that the defendant Harry W. Allen, at all times prior to the formal declaration and recordation of the vendor's lien, and particularly at and before the execution of the assignment and trust agreement, had knowledge of the fact that Heimbach "was about to fail"; that Heimbach's creditors were about "to close him out"; and that he had been told by Heimbach that "he was going to turn the property over to Ferger as trustee for the benefit of his creditors."

The action was defended upon the theory that the defendants had an interest in the property superior to that of the plaintiffs by virtue of a vendor's lien, the creation and existence of which were in effect pleaded in the answer of the defendants by averments of the sale and the terms thereof to Heimbach of the property in suit. The subsequent formal declaration and recordation of the defendants' notice and claim of a vendor's lien were also pleaded in said answer, and a copy of the claim of lien as declared and recorded was attached to and specifically made a part of the answer.

The evidence does not support and is contrary to the finding that the defendants did not retain, and never intended to retain, a vendor's lien upon the property. Evidently this

finding was founded solely upon the theory that neither the negotiations and circumstances preceding and attending the transfer of the property from the defendant Harry W. Allen to Heimbach, nor the terms of the sale subsequently consummated, disclosed an express intention on the part of Allen to reserve and retain unto himself a vendor's lien for the unpaid portion of the purchase price.

The right to a vendor's lien upon land sold for the unpaid and unsecured portion of the purchase price as originally conceived in equity is now embodied in our statutory law, which gives the right to "one who sells real property . . . independent of possession for so much of the price as remains unpaid and unsecured otherwise than by the personal obligation of the buyer." (Civ. Code, sec. 3046.) It never was and is not now essential to the right to claim a vendor's lien that an intention on the part of the vendor to create and retain unto himself the right to such lien should be expressly declared. The right is given in equity and in law by the very nature of the transaction, and consequently exists without regard to the express agreement of the parties. (Claiborne v. Castle, 98 Cal. 30, [32 Pac. 807]; Avery v. Clark, 87 Cal. 619, [22 Am. St. Rep. 272, 25 Pac. 919]; Moshier v. Meek, 80 Ill. 79.)

The further finding of the trial court that it was the intention of the defendants to waive, and that they did waive, any lien as vendors which they might have had or claimed against the property in question, is assailed upon the ground that it is contrary to the evidence; and in this behalf it is asserted that this particular finding receives support in the evidence only in the fact that the defendants sold the property in question to Heimbach with knowledge that it was to be hypothecated for the purpose of procuring a loan with which to build upon the property.

The particular finding under consideration does not rest solely upon the fact stated. While it is true that such fact is specifically found, still the finding of waiver is a separate and distinct finding, which, while perhaps resting in part upon the preceding finding of the fact stated, is nevertheless neither expressly nor impliedly limited for support to that fact, but may be fairly said to be based upon all of the evidence in the case, which in addition to the fact stated shows, as we have previously pointed out, a conveyance of the prop