A purchaser of immovable property under al executory contract of purchase, not in default in the performance thereof, has a special lien, independent of possession, valid against every person claiming under the vendor except a bona fide purchaser or encumbrancer for value,2 for such payments as he is entitled to recover back in case of a failure of consideration. 1 Civil Code, section 3050, provides: "One who pays to the owner any part of the price of real property, under an agreement for the sale thereof, has a special lien upon the property, independent of possession, for such part of the amount paid as he may be entitled to recover back, in case of a failure of consideration."' As enacted 1872. This section is intended to secure a party from injury through the wrong or inability to perform of the other party. If the vendee did to himself the injury, he is not injured in the eye of the law. . . . . In equity a vendee had a lien when in possession under a contract, if the consideration failed. It was the 534. Prerequisite to Enforcement of Lien. The purchaser must, as a prerequisite to the enforcement of his lien, surrender the possession of the property if already obtained by him.3 counterpart of the lien given the vendor, and the rule in equity is that no such lien exists in favor of one who is in default. One who has himself abandoned the contract, or has refused to perform it according to its terms, is not afforded a lien to secure him from loss because of his own breach of the contract": Merrill v. Merrill, 103 Cal. 287, 293, 294, 35 Pac. 768, 37 Pac. 392. For the amount paid on account of the sale of immovable property a vendee "has a lien upon the property, in case of failure on the part of the vendor to make good his part of the contract, unless the vendee is himself first in default": Benson v. Shotwell, 87 Cal. 49, 54, 55, 25 Pac. 249. So where a vendor repudiates a sale upon default by the vendee in the payment of the purchase money, the vendee has no lien for the amount already paid: Merrill v. Merrill, 103 Cal. 287, 35 Pac. 768, 37 Pac. 392. 2 Civil Code, section 3048: "The liens defined in sections 3046 and 3050 are valid against everyone claiming under the debtor, except a purchaser or encumbrancer in good faith and for value." On what constitutes bona fide purchaser, see section 281, note 32, above. 3 Where a purchaser in possession under an agreement for the purchase of lands relies upon the agreement as being in force, and as entitling him to remain in possession of the land, and pleads a full performance on his part and the default of the vendor, he is not entitled to recover the amount paid by him, so long as he treats the contract of purchase as in force. He cannot retain the possession and at the same time recover the amount paid under the contract. And until he is entitled to recover back such payments he cannot enforce his purchaser's lien: Haile v. Smith, 113 Cal. 656, 664, 45 Pac. 872. CHAPTER 3. LIENS FOR IMPROVEMENTS TO IMMOV ABLE PROPERTY. (MECHANICS' LIENS.) "The principle upon which liens are allowed in favor of mechanics and materialmen is, that their labor and materials have given value to the buildings upon which they have been expended, and that it is inequitable that the owner of the land, who has contracted with them for such improvement, or has stood by and seen the improvement in progress without making objection, should have the benefit of their expenditures without making compensation therefor": Avery v. Clark, 87 Cal. 619, 628, 22 Am. St. Rep. 272, 25 Pac. 919. The statute contemplates throughout that the privi leges it allows to those who furnish materials or labor for the execution of improvements shall be exercised with promptitude, and so as not to hamper either contracting owner, original contractor, or those who deal with them in the free disposition of the property rights affected by or arising from the contract, beyond such time as may be convenient for the assertion of those privileges: First Nat. Bank v. Perris Irr. Dist., 107 Cal. 55, 62, 63, 40 Pac. 45. ARTICLE 1. PRELIMINARY PROVISIONS. 535. Contracting owner defined. 536. Improvement defined. 537. Classification of persons engaged upon improve ment. 538. Original contractor defined. 539. 540. Subcontractor defined. Materialman defined. 541. Materials about to be used in improvement exempt from execution. 535. Contracting Owner Defined. A person who causes personal services or materials to be bestowed upon an improvement in which he owns any interest is a contracting owner. 536. Improvement Defined. Any specified, fixed object upon which personal services or materials are bestowed, and against which a lien for such services or materials may be claimed, as a structure, a mining claim, or a lot in an incorporated city or town, is called an improvement for the purposes of this chapter.1 1 In sections 1183, 1184, 1185, and 1187, of the Code of Civil Procedure, "and others might be mentioned, the term 'improvement' is evidently used as (The making of any valuable alteration or addition to specific immovable property, or the valuable alteration or addition which is made, is also sometimes referred to as an improvement.) 537. Classification of Persons Engaged upon Improvement.2 All persons bestowing personal services or materials upon any improvement are divided into. four classes: (1) laborers, including all persons of every class furnishing their own personal services exclusively, equivalent to the object upon which the labor has been performed, and it would be an unwarranted application of the term to construe it as equivalent to the labor itself, or to that particular class of labor for which the claimant was employed': Davis v. MacDonough, 109 Cal. 547, 551, 42 Pac. 450. "In Davis v. MacDonough . . . . the improvement upon which a lien is authorized by section 1183 is held to refer to the objects enumerated in that section upon which the labor was performed, or for which the materials were furnished": Warren v. Hopkins, 110 Cal. 506, 510, 42 Pac. 986. 2 See Code of Civil Procedure, section 1194: "In every case in which different liens are asserted against any property, the court in the judgment must declare the rank of each lien, or class of liens, which shall be in the following order, viz: (1) all persons performing manual labor in, on, or about the same; (2) persons furnishing materials; (3) subcontractors; (4) original contractors." "The law recognizes a clear distinction between these classes of persons': Hinckley v. Field's Bis cuit etc. Co., 91 Cal. 136, 139, 27 Pac. 594. |