Pulschen

— Action to foreclose a vendor’s lien. Judgment was entered for plaintiff foreclosing the lien, but subject to a mortgage in favor of defendant McDonald for $4,500.

The land was owned by Bruce and Kent. Henderson contracted to purchase from them and paid a portion of the purchase price, but left $5,000 unpaid. Henderson sold one-half to plaintiff for $5,000—one-half paid in cash. A deed was to be made by Bruce and Kent upon payment of the other half with interest.

March 28, 1891, plaintiff agreed to sell the property to Pulschen for $5,300, of which $2,700 was to be paid to Bruce and Kent in satisfaction of their claim upon the land. Three hundred dollars was to be paid to plaintiff in cash upon the delivery of a deed from her to Pulschen, *531 and $2,300 according to the terms of two promissory notes then executed by Pulschen. It was expressly agreed that plaintiff should retain possession of the premises as security until all the purchase money was paid.

The contract between plaintiff and Pulschen does not appear to have been in writing. Pulschen applied to defendant McDonald for the money which would enable him to carry out the agreement with plaintiff. It seems he already…

dissenting.—I dissent, and adhere to the opinion heretofore rendered by the court in Bank after the first rehearing (Austin v. Pulschen, 42 Pac. Rep. 306 ), which approved the opinion of Commissioner Vanclief. (Austin v. Pulschen, 39 Pac. Rep. 799 .) Heretofore those who favored the contention of respondent McDonald only went so far as to hold that he ought to be subrogated to the position of Bruce and Kent (see dissenting opinion to Austin v. Pulschen, 42 Pac. Rep. 307 ); but now it is to be held that the judgment be affirmed, which makes the whole amount of his mortgage, including the old personal debt to him from Pulschen, superior to the lien for the debt of the latter to appellant for the purchase money of the very land out of which McDonald is now to receive his old and apparently worthless claim. Respondents’ side of the case has assumed, from time to time, many new phases; but under neither of them can appellant, in my opinion, be compelled to lose her purchase money and her lien therefor. She sol'd to Pulschen in the faith that he would pay the $2,300 evidenced by his two notes; the representations of Pulschen that he could and would pay them were, as the court found,…