
    Stuart v. Harrison et al.
    1. Vendor’s Lien: waived by taking mortgage. A vendor’s lien is waived by taking a mortgage upon the property sold, to secure the purchase money.
    
      Appeal from, Gli/rdon District Gov/rt.
    
    Monday, December 8.
    The petition states that Alexander Stuart sold and conveyed to the defendants certain described real estate; that a certain portion of the purchase money was secured by mortgage on the real estate conveyed; that afterward the mortgage as to a portion of the land was released, for the purpose of enabling the defendants to borrow certain money from the school fund, ■and secure the same by a mortgage on that portion of the premises so released. The mortgage and debt secured thereby is the property of the plaiutiff. Among other appropriate relief, it was asked that a vendor’s lien be established against that portion of the premises that had been released from the lien of the mortgage. To so much of the petition as asked a vendor’s lien there was a demurrer, on the ground that the facts alleged did not entitle the plaintiff to such relief. The demurrer was sustained and the plaintiff- a peals.
    W. Corning, for appellant.
    No appearance for appellee.
   Seevers,- J.

— Whether a vendor’s lien should be regarded as waived because a mortgage has been taken on other property is not in this case. But where a mortgage is taken on the same, property sold it evinces, we think, an unmistakable intent on the part of-the vendor to waive the lien. The latter is a mere equity, and must be regarded as merged or displaced by the mortgage. The two are inconsistent, and cannot exist and be enforceable at the same time. Young v. Wood et al., 11 B. Mon., 123, is precisely in point and we are content to follow it, without restating what has been so well said in that case.

Affirmed.  