"Vendor’s Lien—Contract to Convey Mine—Benefit of Corporation —Security to Vendor—Lien Negatived.—Where the existence of a vendor’s lien depends upon the construction of a contract to convey a mine for the benefit of a British corporation to be organized, upon a basis of security to the vendor, and a fair construction of the contract manifests an intent plainly inconsistent with the reservation of a vendor’s lien, no such lien can be enforced.

Ed.—Nature of Vendor’s Lien—Code Provision—Equitable Origin— Result.—Although section 3046 of the Civil Code provides that “one who sells real property has a vendor’s lien thereon, independent of possession/ for so much of the price as remains unpaid and unsecured otherwise than by the personal obligation of the buyer,” yet the lien does not find its origin in this enactment, but has been generally recognized by courts of chancery. It is not the result of any agreement or any intention of the vendor and vendee, but is a simple equity raised by courts for the benefit of vendors of real estate.

Id.—Presumption in Pavor of Lien.—Where there is nothing to indicate an intention one way or the other, the lien is presumed to exist, and is an incident of the transaction of sale.

Id.—Personal Right—Loss by Waiver—Consideration or Writing Not Required.—The right of lien afforded to the vendor of enforcing payment of the consideration against the property conveyed is a personal one, and it may be waived and relinquished without consideration and without a writing. When the lien is once waived it is gone forever.

Ii>.—Manifesting Intent Not to Rely on Lien—Security without-Reservation.—If the vendor does any act manifesting an intention on his part not to rely on the lien given by law for the purchase-money, such as taking security therefor without an express agreement that he may still have his vendor’s lien, the lien will not exist.

Id.—Scheme of Contract against Lien—Conveyances Clear of Encumbrance—Security for Payment.—The scheme of the contract,, as a whole, by which the mines owned by the plaintiff were to be-conveyed clear of all encumbrance to an agent for the benefit of a British incorporation to be organized, upon three times the capitalization of plaintiff, the title of which agent was to be conveyed thereto-free of all encumbrance and the proceeds of shares of stock deposited in escrow were to be divided and applied on purchase money, and a percentage of the proceeds of mining were to be likewise applied, excludes the idea that a secret lien in favor of the vendor was to be-retained, as being inconsistent with the execution of such scheme.

Id..—Waiver of Lien—Default in Dividing Shares Immaterial.— Where it sufficiently appears that plaintiff intended to and did' waive any lien on the property sold, an alleged default of the purchaser in failing to divide the shares was immaterial, as such default could not create a lien when none had theretofore existed.

Id.—Judgment Not Permissible against Agent—Support of Finding against Breach.—The plaintiff could not claim a personal judgment against the agent to whom the title was first conveyed for alleged breach of the contract, where the court found upon sufficient evidence that he did not commit such breach.

Id.—Correct Judgment against Plaintiff—Plaintiff’s Objections to Claims of Other Parties Not Reviewable.—Where the court below rightly determined that plaintiff had no vendor’s lien and was not entitled to any relief, any other objections made by plaintiff to claims of other parties, in which he has no concern will not be-reviewed upon appeal.

Id.—Deed of Trust of Mining Property — Ratification by Stockholders—Construction of Act of 1880.—Modification of Strict Rule.—The strict construction and application of the act of 1880,, requiring the formal ratification of two thirds of the capital stock ! of a mining corporation as essential to the validity of a sale or | mortgage of its mining ground, as against its creditors, its stock- ; holders, and the corporation itself, made by former decisions has been relaxed by more recent decisions; and the proper rule now is, that where the persons holding the required two thirds of the stock have in a formal and unequivocal way announced their assent to the proposed transaction, their rights are as fully safeguarded as if they had ratified the transfer, purchase, or mortgage by subsequent writing or at a meeting.

Id.—Act to be Construed as Illustrative.—The act of 1880 is to be construed as illustrative and not as exhaustive of the manner of ratification.

Id.—Formal Consent by Directors Holding Two Thirds of Stock.— Where a director of the corporation was the holder of two thirds of the stock of the British corporation at the time of the authorization and execution of the mortgage, his act in authorizing, executing, and acknowledging the mortgage as a director of the corporation, answered every requirement of the act.

Id.—Test of Bight to Ratify—Legal Right to Vote.—If given persons form two thirds of the stockholders authorized to vote at a. stockholders’ meeting, they may act as stockholders in signing and acknowledging a written ratification, and mere beneficial interests therein not appearing upon the face of the books of the corporation-cannot be considered. The test of the right to vote as a stockholder at corporate meetings is the ownership of shares as disclosed by the record books of the corporation ten days before the vote.

Id.—Rights of Beneficial Owners.—The fact that the court may look behind the legal ownership and sustain a ratification by two thirds of the beneficial owners does not prevent the legal owners from making a legal ratification as invested with the legal title to the stock.

Id.—Findings against Evidence—Right to Foreclose Deed of Trust to Secure Creditors—Reversal.—Held, that findings that a deed of trust of the mine to secure the creditors of the British corporation was invalid; that it could not be foreclosed, and that the trustees could only recover a legal judgment against such corporation, were against the evidence, and that the trustees had the right to foreclose the deed of trust; and the judgment in that respect must be reversed and a new trial ordered. In such case, this court cannot direct a different judgment on the findings upon any theory of estoppel of the corporation by its conduct, nor on the ground that the findings against evidence were not within the issues.

Id.—Objection by Respondent — Defense Not Pleaded. — The respondent cannot resist reversal on the ground of any defense not pleaded.