Allen v. Phelps (4 Cal. 257, 1854)

Mr. Justice Heydeneeldt

delivered the opinion of the Court.

Mr. Ch. J. Murray concurred.

The case rests simply upon the fact, whether the action of Semple v. Stewart & Cooke, was for the enforcement of the former’s lien in equity, or a mere action at law, for the *recovery of the money ? From the language used in the findings of the Judge, we are bound to infer the latter, because it is not distinctly expressive of the former. Error must be clearly manifest, and will not be implied.

The position that the purchaser, at Sheriff’s sale should be subrogated to Semple’s equitable lien, cannot be taken in this suit; if available at all,, it must be made so, in a separate equitable action.

Judgment affirmed.