I dissent, and adhere to the views expressed in the former opinion. (Post, p. 96.) I cannot subscribe to the doctrine that the owner in fee of land who simply agrees to convey it upon the payment to him of certain money evidenced by a promissory note is in the same position as one who conveys the land and takes back a mortgage; or that if, in the former case, he merely assigns the promissory note, the assignee of the note has a lien on the *95land. If the latter can enforce such a lien, he must be able to relea se it. But how could he release it? It could be released only by conveying the land to the vendee; but how could he convey that which he hath not? If, after the assignment of the note, the vendor should convey the land to the vendee, what then would be the condition of the supposed lien of the assignee of the note ?
The whole doctrine must rest on the untenable proposition that the assignment of a negotiable promissory note is a conveyance in fee of land.
I knowtliat some of therecent text-writers speak of such a case as bearing “ a strong similitude to that of mortgagee and mortgagor,” and say that although it “is often spoken of in the cases as a vendor’s lien,” yet, in their opinion, such language is “a misuse of terms”; and that although “ it has been said in English and American decisions that the vendor’s lien may arise before conveyance as well as after,” yet that this saying “ confounds legal notions which are essentially different.” But, in my opinion, those “ English and American decisions” correctly state the law, and tend to. prevent confusion. In this state, Sparks v. Hess, 15 Cal. 194, is the leading case on the subject. In that case the court say: “ This is not a suit to enforce a vendor’s lien after conveyance executed, but to enforce such lien when the contract of sale remains unexecuted,” and that while the position of the vendor is, “in some respects,” like that of a mortgagee, it is, in other respects, different. “ The vendor is at liberty to ask either a decree directing performance, and in case of refusal, a sale of the premises, or a decree barring the right of the vendee to claim a conveyance under the contract.” Throughout the whole case the right of the plaintiff is treated as, and called, a “ vendor’s lien”; and there is no doctrine better established than that a vendor’s lien is not assignable. In the case at bar there was no conveyance of the legal title from the owner of the land (Webster) to the assignee of the noté; *96and, in my opinion, the mere assignment of the note carried no title to the land, and no vendor’s lien, or any lien at all. But, in my opinion, a vendor’s right is too shadowy to be a lien within the meaning of the attachment law.
The following is the opinion referred to by Mr. Justice McFarland, which was delivered upon the first hearing in Bank, on the 28th of July, 1890: —
McFarland, J. —This is an appeal from an order denying a motion to dissolve an attachment.
The action is upon a negotiable promissory note given by defendant to one E. C. Webster, and by the latter assigned to plaintiff. The ground of the motion is, that the note sued on was given to Webster in part payment for certain land purchased from him by defendant; that Webster had a vendor’s lien as security for the payment of the note; that the lien passed to plaintiff by the assignment of the note; that the payment of the note was thus secured by a lien on real property, and that, consequently, a writ of attachment could not rightfully be issued.
But a vendor’s lien is a mere personal, unassignable privilege, and could not be transferred to another person by a direct attempt to expressly assign the lien itself; and in the case at bar the lien certainly did not pass by the mere assignment of the promissory note. (Baum v. Grigsby, 21 Cal. 173; 81 Am. Dec. 153; Porter v. Brooks, 35 Cal. 199.)
The affidavit of defendant on motion to dissolve the attachment was, no doubt, intended to show (and we will assume that it does show) that on the purchase of the land no deed of conveyance passed, but that Webster was not to make such deed until the full payment of the purchase price, — the character of the vendor’s lien, therefore, being like the one involved in Sparks v. Hess, 15 Cal. 166. And appellant contends that there is a dis*97tincfcion between a vendor’s lien before the legal title* has passed, and the one that exists after title has passed. There is some such distinction, but none that affects the question involved in the case at bar. Where title has not passed, the vendor has a more certain and valuable lien than where it has passed, because, in the latter event, the lien may be defeated by the vendee conveying to an innocent third person. He also has a variety of remedies. (See discussion of the subject in Sparks v. Hess, 15 Cal. 166.) In Porter v.. Brooks, 35 Cal. 199, where the title had passed, and it appeared that the vendee had conveyed to a third party,, it was held that the vendor’s lien did not bar a writ of attachment, even though it did not appear that the third party was an innocent purchaser without notice; and Justice Sawyer, in an elaborate and learned concurring opinion, reaches the conclusion that the right of a vendor, after title has been passed, is too shadowy and inchoate to be recognized at all as a “lien” within the meaning of the attachment law. But the discussions on the subject will be found to relate to the right as between vendors and vendees, or the successors of vendees. We have been referred to no case in this state where a vendor’s lien has been held to be of any value in the hands of any person other than the vendor himself.
Order affirmed.
Fox, J., Sharpstein, J., and Thornton, J., concurred.