
    Dibblee and Others v. Mitchell and Others.
    Under the code, a vendor of real estate maj^ enforce his lien for purchase money, without having first obtained a judgment at law; but if he should resort to his legal claim first, he does not thereb3r waive his right ultimately, if necessary, to resort to his equitable remed3r against the property sold.
    A vendor’s lien is waived by accepting personal securit3r on a note given for the purchase money, whether such security is given in pursuance of the contract of sale, or b3r subsequent'agreement, unless such security is taken for a purpose which shows that the equitable lien was not thereby waived. ‘
    
      Thursday, January 24.
    APPEAL from the Warren Circuit Court.
   Hahna, J.

On April 8, 1858, Neff and others recovered a judgment,- in the Warren Court of Common Pleas, against Huoiter and West.

On October 26,1858, Dibblee, Work, and Moore, the appellants herein, recovered a judgment, in the Warren Circuit Court, against Mitchell, Tolancl, and West.

Afterward, to wit: on April 14, 1860, certain lands were sold on an execution issued upon the judgment first aforesaid. Before the money arising from such sale was paid over to the plaintiffs in said judgment, the appellants herein filed their complaint, averring the facts aforesaid, and that their aforesaid judgment was founded upon a promissory note, which was given for the last installment of the purchase money of said lands, so sold by the sheriff; that said lands were sold by said Hunter to Mitchell and Tolancl, a title bond executed, and said note given; that at the time of said sale by Hunter, said West owned an undivided interest in said lands; that afterward, to enable said Hunter to sell said note, said West became surety thereon, and'the same was thereupon assigned, &c., and judgment obtained thereon, as aforesaid; that Hunter and West have both become insolvent, said' land being the only property out of which to make said debt; that Tolancl and Mitchell are non-residents of the State, and have no property therein out of which, &c.; that after Hunter assigned said note, he, without the knowledge or consent of plaintiffs, made an arrang’ement, by which he agreed to pay off the judgment of plaintiffs, and upon such payment, the said title bond was to be delivered back to him by Mitchell and Toland, and he was to be released from making a deed, &c.; that he did not jDay said judgment.

The plaintiffs in the judgment upon which said execution issued, Jones, the sheriff, and Chandler, who purchased at said sheriff’s sale, are made defendants; and it is charged that they all had notice of the rights and interest of plaintiffs, and their equitable lien, &c. Said plaintiffs, in said complaint, moved the Court and prayed that the proceeds of said sale should be applied upon their said judgment, or that an order might be made, annulling and setting aside said sale, &c., and for other relief.

A demurrer was sustained to the complaint. This ruling presents the only point in the case.

It will be observed that there is no allegation that a vendor’s lien was declared, or prayed, in the proceedings and judgment of plaintiffs, on said note. Perhaps, under the former practice, such proceedings should be distinct: 1. Upon the note, the legal claim; 2. Upon the equitable claim, the lien of the vendor. Both rights might have been enforced in one proceeding now. Scott v. Crawford, 12 Ind. 411. But yet, if a plaintiff sees proper to first resort to his legal claim, we do not think he thereby waives his right ultimately, if necessary, to resort to his equitable

Gregory and Harper, for appellants.

P. A. Chandler, for appellees.

Two questions are then presented: 1. Did the vendor waive his equitable lien, by obtaining the name of West as surety on the note, taken for the purchase money ? 2. If not, is he in a condition, by his own showing, to ask that the lien may be enforced, and in the form herein prayed for ?

It is insisted that he did not waive such equitable lien, for the reason that the surety was not taken at the time the note was executed, and because West, the surety, had an undivided interest in said lands; and for the further reason, that Hunter was guilty of a fraud, as to plaintiffs, in making the agreement by which he was discharged from making a deed to Mitchell and Toland.

We are of opinion that, prima facie, the equitable lien which the vendor, Hunter, had, was waived—-abandoned, by his requiring and accepting personal security on the note for the purchase money. It matters not for what purpose the security was required, unless it should be for a purpose which should show that the equitable lien was not thereby waived; nor whether the vendees gave such security by the terms of the contract of purchase, or by the terms of a contract or agreement afterward made, in reference thereto. McCarty v. Pruett, 4 Ind. 226.

This conclusion dispenses with the necessity of inquiring as to the other questions presented.

Per Curiam.

The judgment is affirmed, with costs.  