persons against the purchaser,11 unless the muniment of title to the property has passed from the vendee to a bona fide purchaser or encumbrancer for value in the usual course of business. 12 456. Stoppage does not Rescind Sale. Stoppage in transit does not, of itself, rescind a sale, but is a means of enforcing the lien of the seller. 13 11 "The right of stoppage in transitu is paramount to any lien on the goods claimed by third persons against the purchaser. Thus it may be used to defeat an attachment or execution levied upon the goods by a creditor of the vendee, for the lien acquired by the levy operates only upon the interest acquired by the debtor but cannot defeat the paramount right of a stranger': Blackman v. Pierce, 23 Cal. 508. 12 See section 450, above, especially note 5. "It is now well settled both in this country and in England, that the true nature and effect of the right of stoppage in transitu is simply to restore the goods to the possession of the vendor, so as to enable him to exercise his rights as an unpaid vendor, not to rescind the sale. . . . . In California it is, in effect, sc provided by statute. . . To enforce his rights, the vendor must be, and is, entitled to retake the possession of the property, and must hold it until the expiration of the credit, so as to be able to deliver it upon the payment of the price, for up to that time the vendee has the right to pay the price and take the property': Sheppard v. Newhall, 54 Fed. 306, 309, 1 C. C. A. 352, 9th Cir. 457. Methods of Enforcement of Lien. A vendor's lien is enforced (1) by a foreclosure action, or (2) by a sale by the vendor after actual notice to the vendee conducted as prescribed in case of pledged property.14 14 Civil Code, sonal property section 3049: "One who sells permay enforce his lien in like manner as if the property were pledged to him for its price." Sale of pledged property: See sections 232 through 240, above. CHAPTER 6. LIEN FOR IMPROVEMENT OF MOVABLE 458. Who lienor. 459. PROPERTY. Enforcement of lien. 460. Disposition of proceeds of sale, 458. Who Lienor. Any person who makes, alters, or repairs any article of movable property, at the request of the owner or legal possessor thereof, has a lien against the same for his reasonable charges for work done and materials furnished.1 1 See Civil Code, section 3052, first clause, as enacted 1872. Stats. 1867-68, page 589, chap. 448, sec. 15, gave the lien to "any mechanic, artisan, or laborer." Under Stats. 1862, page 384, chap. 297, section 20, the word "laborer" was replaced by machinist."' Stats. of 1850, p. 211, chap. 87, sec. 13, Stats. 1855, p. 156, chapter 130, section 11, and Stat. 1856, page 203, chapter 134, section 10, gave the lien solely to any mechanic or artisan." Compare Civil Code, section 3051, first sentence: "Every person who, while lawfully in the possession of an article of personal property, renders any service to the owner thereof, by labor or skill employed for the protection, improvement, safekeeping, or carriage thereof, has a special lien thereon, dependent on possession, for the compensation, if any, which is due to 459. Enforcement of Lien. If such charges are not paid within two months after the work is done, the lienor may proceed to sell the property at public auction, after giving ten days' public notice of the sale by advertising in some newspaper published in the county in which the work was done; or, if no newspaper is published in such county, then by posting notices of the sale for ten days previous thereto in three of the most public places in the town where the work was done.2 him from the owner for such service." As enacted 1872. In Lewis v. Tyler, 23 Cal. 364, it was declared that this lien existed independent of statute in favor of one who by his labor and skill imparts additional value to goods. Illustration.--A person who enters upon the land of another, under a contract with the owner, for the purpose of manufacturing railway ties anc. shakes for the owner, at a certain fixed compensation, and who, after manufacturing them, piles them up on the land in piles of a certain number each, and marks each pile, and remains in possession thereof, has a lien against the property for the amount due him for manufacturing them, and the right to retain possession thereof until the lien is discharged by the payment of the amount due him: Douglass v. McFarland, 92 Cal. 656, 28 Pac. 687. 2 See Civil Code, section 3052, second sentence. Historical.-Stats. 1867-68, page 589, chap. 448, section 15, reads substantially the same. The statute of 1862 omits the phrase, near the end, "for ten days previous" to the sale. By the statutes of 1850, 1855, and 1856, three weeks' notice of the auction was required, instead of ten days. By statute of 1855, the 460. Disposition of Proceeds of Sale. The proceeds of the sale must be applied to the discharge of the lien, and the cost of keeping and selling the property; the remainder, if any, must be paid over to the owner thereof.3 enforcement by sale was only permitted after the lapse of six months, instead of two months. 3 Civil Code, section 3052, last sentence, as enacted 1872. Previous statutes contained a similar provision. |