8

Tuolumne, Ventura, and Yolo counties, and that part of San Joaquin county north and east of the San Joaquin river, where viewers are appointed to determine the particular part of the fence to be made by each coterminous owner, within six months after their determination, the person to whom the notice was given fails to proceed to erect one-half of the partition fence, the person giving notice may then erect the entire partition fence and collect by law one-half the cost thereof from the other party. This demand, together with interest thereon at the rate of fifteen per cent per annum, constitutes a lien-claim against the land thus partitioned by the partition fence.

615. Lien Perfected by Filing Notice of Claim of Lien.

The lien-claimant must file a notice of claim of lien in the office of the county recorder as required by law in order to perfect a mechanic's lien, and thereupon when the notice is duly filed the lien is perfected and becomes enforceable."

8 Stats. 1875-76, p. 175, c. 172, sec. 1, provides: " If, after notice given in writing, or after determination of the viewers, as provided in section 6 hereof, either party shall fail to proceed to erect, or cause to be erected and completed, within six months' time thereafter, one-half of such fence, the party giving the notice may proceed to erect, or cause to be erected, the entire partition fence, and collect by law one-half of the costs of the fence from the other party."

616. Lien a Cumulative Remedy.

The lien herein authorized is a cumulative and additional remedy in no manner impairing the right of action otherwise available upon the secured obligation.1 10

9 Stats. 1855, p. 154, c. 129, sec. 5, as amended Stats. 1860, p. 141, c. 173, sec. 1, provides: "Notice of such lien shall be filed in the office of the county recorder of the county as provided by law for mechanics' liens."'

Stats. 1855 p. 154, c. 129, sec. 6, as amended 1860, p. 141, c. 173, sec. 2, adopts this provision.

Stats. 1875-76, p. 175, c. 172, sec. 1, in part, provides: "He shall be entitled to a lien upon the land thus partitioned, as provided in section 1 of an act entitled 'An act amendatory of and supplemental to an act entitled an act concerning lawful fences, approved April third, eighteen hundred and sixty.'"

As to the notice of claim of mechanic's lien, see section 568 above.

10 It was so held in respect to the lien established by the act of 1855 as amended 1860 in Gonzales v. Wasson, 51 Cal. 295, 298.

617.

618.

CHAPTER 6.

MINING PARTNER'S LIEN.

Nature of lien.

Who bona fide purchaser.

619. Lien does not entitle lienor to possession.

620. Effect of sale of liened interest.

621. Lien nonwaivable.

617. Nature of Lien.1

3

Each member of a mining partnership has a lien, independent of possession, against the partnership property, valid as against every person except a bona fide purchaser for value, as security

1 "It is apparent this lien is given for the purpose of enabling him [the partner] to collect from his copartners their proportion of the indebtedness which he has been compelled to pay in full'': Stuart v. Adams, 89 Cal. 367, 371-372, 26 Pac. 970.

2 Civil Code, section 2514, first sentence, provides: "Each member of a mining partnership has a lien on the partnership property for the debts due the creditors thereof, and for money advanced for its use."

3 See Morganstern v. Thrift, 66 Cal. 577, 6 Pac. 689, as quoted section 619, note 6, below.

4 Civil Code, section 2517, provides: "A purchaser of an interest in the mining ground of a mining partnership takes it subject to the liens existing in favor of the partners for debts due all creditors thereof, or

(1) for the payment by the partnership of the debts due the creditors thereof, and

(2) for the repayment of moneys advanced by him for its use.

618. Who Bona Fide Purchaser.

A purchaser of the interest of a partner in a mine when the partnership is engaged in working it, takes with notice of all liens resulting from the relation of the partners to each other and to the creditors of the partnership.5

619. Lien does not Entitle Lienor to Possession.

The existence of a mining partner's lien does. not entitle the holder thereof to the possession of the liened property.

advances made for the benefit of the partnership, unless he purchased in good faith, for a valuable consideration, without notice of such lien."

5 Civil Code, section 2518.

6 Lien does not Entitle Lienor to Exclusive Possession. “The lien of a partner, mentioned in section 2514 of the Civil Code, does not give to either partner a right of possession to the partnership property, to the exclusion of the other from such possession. The lien has no connection with the possession. It exists independent of possession. If one partner is in actual possession of the property of the partnership, claiming to hold it against the other, the lien still exists in favor of the other partner out of possession, as in the case specified in the section above cited": Morganstern v. Thrift, 66 Cal. 577, 578, 579, 6 Pac. 689.

620. Effect of Sale of Liened Interest.

Upon a sale by one partner of his interest in partnership property affected by a lien in favor of another partner, made to a person bound by the lien, the liened property becomes primarily liable for the payment of the secured obligation and the retiring partner secondarily liable therefor.7

621. Lien Nonwaivable.

A mining partner's lien cannot be waived by any agreement made by the person entitled thereto.8

7 Sale of Liened Interest.-"Ordinarily, when a partner retires from a firm he continues personally liable for the indebtedness, unless the new firm has assumed the debt and the creditor has taken them for it. If, in the case of a mining partnership, the retir ing partner still continues bound, he nevertheless has parted with the equity to have the partnership debts paid out of the partnership property. The purchaser, however, having taken his interest subject to the debts, has no claim to recover against his vendor for any debts which may be paid out of the partnership assets. The former partners, therefore, have no interest, except consequentially, in this proceeding, and if proper, are certainly not necessary parties to it": Jones v. Clark, 42 Cal. 180, 194, 195.

8 Civil Code, section 2514, last sentence.