Parrish

This is an action td foreclose a mortgage made by the defendant W. Parrish to the plaintiff *256 on certain lots in the city of San Diego. Defendant, D. Choate, answered and filed a cross-complaint, in which he set up and asked to have foreclosed a vendor’s lien upon the lots described in plaintiff’s mortgage. Plaintiff demurred to the cross-complaint upon the ground, among others, that the lien set up, if any existed, was barred by sections 339 and 343 of the Code of Civil Procedure. The demurrer was overruled, and thereupon plaintiff answered the cross-complaint, alleging in substance that the said lien had been waived by Choate.

The case was tried, and the court found the facts, and, among other things, the amount due from defendant Parrish to the plaintiff and to the defendant Choate, and as a conclusion of law that Choate had a vendor’s lien on each and every part of the lands involved in the action, and had not waived the same, and that said lien was not barred by the statute of limitations. A decree was accordingly entered that the mortgaged premises be sold, and the proceeds of the sale, after paying the costs and expenses thereof, be applied: 1. To the payment of the…