Pease v. Kelly 3 Or. 417

GEORGE A. PEASE, Administrator, Respondent, v. JAMES K. KELLY and others, Appellants.

Vendob’s Lien. — A mortgage is a more certain security than a vendor’s lien, and under our laws, .the tailing of a mortgage for the purchase money, is a waiver of the vendor’s lien.

Idem. — A vendor’s lien exists in ease there is no higher security.

Idem. — Both the lien of a mortgage and a vendor’s lien cannot exist at the same time.

The complaint in substance alleges that Robert Moore in his lifetime, in 1852, sold and conveyed by deed to Daniel H. Ferguson, a tract of land, and water privilege at the Willamette Falls, for fifty thousand dollars; of which sum forty-five thousand remained unpaid, and a note for that amount was taken by Moore, secured by mortgage on the premises. In 1853, Ferguson sold the premises subject to the mortgage, to the Willamette Falls Transportation Company, who made extensive improvements thereon, and failed; leaving their work subject to the liens of mechanics and material men, in addition to the incumbrance of this mort*418gage. In 1854, Moore assigned this note and mortgage, by written assignment to O. C. Pratt, to secure the payment of a sum of money, loaned by Prattjto Moore. In 1855, Pratt assigned by written assignment to Leander Holmes, and, at the same time, Moore executed a second assignment of the note and mortgage to Holmes, but, at the same time, and as a part of the same transaction, took back an agreement from' Holmes to pay him (Moore) certain sums of money, and especially $9000, which sums were to be secured to Moore by a new mortgage . on the land in question, so soon as Holmes should get the legal title, and discharge the premises from certain mechanics’ liens, which were pending against the property, amounting to about $9,000.

J. K. Kelly and Mitchell & Dolph, for Appellants.

A vendor’s lien, recognized by the courts of some of the states, and rejected by others, is a dangerous principle, and one opposed to the prevailing policy of this country, which discourages secret liens. (Bayley v. Greenleaf, 7 Wheaton, 78; 5 Curtis, 216; 1 Lead. Cases in Equity, 363; Simpson v. Munou, 3 Kansas, 182.)

Taking an express security on the land itself for the whole amount unpaid, as by a mortgage, will merge the implied lien. (Brown v. Gilman, 4 Wheat. 255; 27 Ill. 422; Fish v. Howland, 1 Paige, 30, 31; and others.)

A vendor’s lien will not be enforced against a bona fide purchaser without notice. (7 Wheaton, 50; 1 Leading Cases in Eq. 371.)

Logan & Shattuch, J. B. Upton and Bronaugh & Bybee, for respondent.

Even if it be held that Moore’s assignment of the $45,000 note and mortgage to Holmes was full, so as to divest Moore at law of all interest in and control over those writings, yet, if $9,000 of the purchase money of the land, intended to be evidenced and secured by those instruments, remains actually due to Moore, under the agreement be*419tween him and Holmes, at the time oí assigning the note and mortgage; and if the defendants had notice, actual or constructive, of that fact at the time they became the purchasers of tho land, then Moore’s estate still retains in equity a vendor’s lien against the land for said $9,000 debt, unless Moore did some act amounting to a waiver of such liep. (4 Kent, 152; 1 John. Oh. E. 308; 5 Ohio, 35; 18 Ark. 142; 1 Paige, 23 and numerous other cases cited.)

The taking of a distinct security for the purchase money, is a vfaiver of this lien, but the taking of a mortgage on the land is not. (17 Ohio 500.)

The rule caveat emptor applies to Kelly’s purchase at sheriff’s sale, of the interest of the Willamette Palls M. &'T. Co. in the land. (2 Kent, 78; 16 Cal. 559; 9 Wheat. 616, 648, and other cases.)1