ON PETITION FOR REHEARING.
SULLIYAN, C. J.— A petition for rehearing has been filed in this case, and the first point made by the petitioner is that an attorney’s fee of $400 was allowed for the foreclosure of said vendor’s lien, while under the statute a vendor’s lien is only permitted as security for the unpaid purchase price and not for any other indebtedness or liability, and 3 Pomeroy’s Equity Jurisprudence, sec. 12.51, and Gard v. Gard, 108 Cal. 19, 40 Pac. 1059, are cited.
This point was not raised in the brief of appellant, and for that reason was not considered by the court in its opinion. Rule 45 of the rules of this court provides, among other things, that the brief of appellant shall contain a distinct enumeration of the several errors relied upon.
As a matter of fact, the trial court did adjudge that the attorney’s fee allowed should be a lien upon said premises. While sec. 3441, Rev. Codes, provides for a vendor’s lien üpon property sold “for so much of the purchase price as remains unpaid and unsecured otherwise than by the personal obligation of the buyer,” under the provisions of said statute an *160attorney’s fee for foreclosing the lien is not made a lien upon the land sold. Therefore, the judgment in this case must be modified to the extent of holding said attorney’s fee not a lien upon the land in question.
It is next contended that since the' decree provides for a deficiency judgment in ease the property does not sell for sufficient to pay the debt, said judgment is absolutely void, because it provides for a deficiency judgment, and in support of that contention Johnson v. McKinnon, 54 Fla. 221, 127 Am. St. 135, 14 Ann. Cas. 180, 45 So. 23, 13 L. R. A., N. S., 874, a Florida case, is cited. In that ease it is held that a deficiency decree may be entered only in suits for the foreclosure of mortgages, and if rendered in an action to enforce a vendor’s lien, is not simply irregular or voidable, but absolutely void and subject to collateral attack. Under our statute we are not inclined to go to the extent held in that case.
Sec. 4520, Rev. Codes, provides, among other things, that sales of real estate under judgments of foreclosure of mortgages and liens are subject to redemption as in the case of sales under execution, “and if it appear from- the sheriff’s return that the proceeds are insufficient, and a balance still remains due, judgment can then be docketed for such balance against the defendant or defendants personally liable for the debt,” etc. While this section is found under the title of “Actions for the Foreclosure of Mortgages,” it clearly includes other liens as well as mortgage liens, and in three sections of said chapter we find the words “mortgage, lien or encumbrance.” We do not think the court erred in providing for a deficiency judgment, since under our statute a multiplicity of suits is not favored, and there is no reason for not granting a deficiency judgment where the property does not sell for sufficient to pay the amount of the lien.
It is next contended that the court failed to consider the seventh assignment of error made in appellant’s brief, to wit, the ruling of the trial court in refusing to permit the defendant to call the plaintiff for cross-examination under the statute (Sess. Laws 1909, p. 3-34). The court in its original decision in this case did not refer to that particular assignment *161of error, although the matter was considered and the court concluded that under the facts of the case said ruling of the trial court was not reversible error, since the appellant’s own letters written after he had received the title to said land clearly show that he fully understood the matter and consented to receive the title from Benjamin Farnsworth.
The court also considered the point made by the appellant to the effect that the contract of sale referred to was in direct contravention of the rules and regulations of the department of the Interior regulating the transfer of a homestead entry or farm unit under a reclamation project. Although we did not touch upon that point in our former opinion, we fully considered the matter and concluded there was nothing in that point. The appellant received just the title he agreed to take; he now has the title to the land, and simply because there was a verbal understanding between the homestead entryman and the party with whom appellant contracted for the purchase of said land that such purchaser should receive a title to one-half of said homestead entry after the entryman had received title from the government, that cannot be a defense to an action to compel the appellant to pay what he agreed to pay for said land, since he has received a good title thereto under and by virtue of his own arrangement and contract with the homestead entryman.
The cause will be remanded for a modification of the findings and decree in accordance with the views expressed in this opinion, and a rehearing is denied.
Budge and Morgan, JJ., concur.