WAIVER OF VENDOR’S LIEN.

Court of Appeals for Stark County.

#### Raechal Rea Hart v. Chas B. Sala, Administrator of Frank B. Hart, Deceased.

Decided, October Term, 1918.

*Vendor’s Lien*— Attaches *Where Other Security is Not Relied Upon*— • *But Acceptance of Distinct and Separate Security*— Amounts *to a Waiver of the Equitable Lien of the Vendor, When.*

Where the vendor of land who has taken a mortgage on the premises conveyed to secure the debt, also takes a cognovit note signed by the vendee and his wife in addition to the mortgage and after-wards cancels the mortgage of record, the taking of the cognovit note and release of mortgage show an unequivocal intention on his part not to rely on the land for security, and constitute a waiver of the vendor’s lien.

*Ammerman*& *Mills,*for plaintiff.

*Isaac H. Taylor*and *William, Simpson,*contra.

Metcalfe, J.

The only question for determination in this case is, whether or not Hiram H. Hart has a vendor’s lien on certain lands which are described in the petition.

On the 23d day of November, 1913, Hiram H. Hart conveyed the land in question to his son Frank B. Hart for the consideration of two thousand dollars. On the same day Frank B.'Hart *366and his wife Raeehal Rae Hart executed to Hiram IT. Hart a mortgage on the premises conveyed for the entire amount of the purchase price, and at the same time Frank B. and Raeehal Rae Hart executed to Hiram IT. Hart two cognovit notes of one thousand dollars each.

The mortgage was duly recorded and on the 7th day of December, 1914, Hiram IT. Hart cancelled said mortgage by entering upon the margin of the record thereof a release in full.

Afterwards, Frank B. Hart died and soon after his death Hiram H. Hart began an action against Raeehal Rae Hart upon said cognovit note and obtained judgment against her for the entire amount thereof.

Under these circumstances does Hiram IT. Hart still retain a vendor’s lien? It is settled beyond controversy in Ohio that a lien exists in favor of the vendor of land, and that the taking of a mortgage upon the land is not a waiver of such lien. *Anketell*v. *Converse,*17 O. S., 11; *Boos*v. *Ewing,*17 O., 500; *Edwards*v. *Edwards,*24 O. S. 402.

It is equally well settled that the taking of additional security, that is to say, securities other than the land in question, waives the lien. *Williams*v. *Roberts,*5 O., 35; *Schurlz*v. *Colvin,*55 O. S., 274; *Mayhan*v. *Combs,*14 O. S., 428.

The diligence of counsel in the case has not been able to furnish us with any adjudication of the question here involved; that is, whether or not the cancellation of the mortgage by the vendor is a waiver of the lien. .

The doctrine that the taking of a mortgage by the vendor did not waive the lien was not determined in Ohio without a very vigorous protest on the part of one of the ablest judges who ever sat upon the Supreme bench.

In *Boos*v. *Ewing,*17 O., 500, where the majority of the court held to that doctrine, Judge Hitchcock rendered a very vigorous dissenting opinion. On page 527 he uses this language:

> “The extent to which this court has heretofore gone is to establish the principle that a vendor has a lien upon the land sold for his purchase money, provided he takes no'other security for its payment than the personal security of the vendee. But, *367if he has taken any other security, let it be real or personal, the security so taken must be relied upon — the implied lien is extinguished. The same principle of a rule prevails, as I understand, in all of the other states of the union where this implied lien is recognized. And it is a rule founded in reason, provided there is reason, in saying that a man can have an interest in land after having done all he could by absolute conveyance to divest himself of all interest.’5

In *Brotvn*v. *Gillman,*4th Wheaton, 455, the court said:

> “The equitable lien of the vendor of land for unpaid purchase money is waived by any act of the parties showing that the lien is not intended to be retained, as by taking separate security for the purchase money.”

In the same ease reported in 1st Mason, 212, Chief Justice Gibson of the Supreme Court of Pennsylvania says:

> “In a careful examination of all the authorities I do not find a single case in which it has been held if the vendor takes a personal collateral security binding others as well as the vendee, as for instance, a bond or note with a security or endorser, or a collateral security by way of pledge or mortgage, that under such circumstances a lien exists upon the land itself.”

In *Schurtz*v. *Colvin,*55 O. S., 274, it is unequivocally held that the vendor of land who takes a mortgage upon the premises, including in the same other lands of the vendee thereby waives his lien for the purchase money.

> “A vendor’s lien is at least presumptively waived when he accepts any distinct and independent security for the purchase money, as for example, -- the note--- of the purchaser with personal security” * * * 39 Cyc. 1835.

> “No lien for the purchase money upon a sale of real property will attach where the vendor takes from the vendee personal security for the payment of the consideration money.” *Follet*v. *Reese,*20 O., 463.

> “The vendor’s lien is lost where the vendor takes real or personal security for the payment of the purchase money.” *Mayhan*v. *Combs,*14 O., 429.

> “The vendor of land who makes a conveyance and takes notes with personal security for the purchase money does not *368retain a lien on the land for that purchase money.” *Williams*v. *Roberts, 5*O., 36.

The doctrine of these eases seems to us to rest upon the proposition that where the vendor does some act which shows an unequivocal intention on his part not to rely upon the land to secure the payment of the purchase money he thereby waives the lien.

It seems to use clear that the taking of the cognovit note with the additional personal security of the name of Raechal Rae Hart thereon, followed by the act of the vendor in cancelling the mortgage upon record shows a clear intention on his part not to rely upon the land for security of his indebtedness.

We do not feel that the law relating to the maintenance of vendor’s liens should be extended any farther than it has already gone. To allow a vendor to retain a lien after he has taken a mortgage upon the premises is the law. But, to allow him to retain the lien, after he has deliberately canceled the mortgage upon the record and given notice to the world that he does not rely upon the land for security, or that his security is extinguished, is to allow him to play fast and loose with the rights of others and to hedge around him a legal protection when he has not seen fit to- protect himself.

We think that when Hiram IT. Hart took the personal security of Raechal Rea Hart and canceled the mortgage upon the record, he gave notice that he did not rely upon the land for security, and that he thereby waived his lien.

The judgment of the lower court is reversed.

Pollock, J., and Farr, J., concur.