
    JOHN F. HECHTMAN v. ALEXANDER SHARP.
    At Law. —
    No. 13,776.
    I. The landlord’s lien for rent is postponed to a mortgage or deed of trust existing upon the furniture of the tenant before it is moved upon the premises; but where that is displaced, his lien is good against all subsequent incumbrances.
    II. Where a note secured by a chattel mortgage is destrojmd and a new note given in its stead, secured by a new deed upon the property to a different trustee, the lien of tlie new deed, if it is duly accepted and recorded, takes effect as to third persons from its date only, and these facts operate to let in the landlord’s lien for rent in arrears.
    STATEMENT OE THE CASE.
    Replevin against defendant for wrongfully taking and detaining the plaintiff’s goods and chattels of the value of $500. The record discloses substantially the following case: On the 19th day of February, 1872, Olive Hechtman gave her promissory note for $1,680, payable three years after date to John Hechtman, of Osseo, Minnesota, and at the same time executed a chattel mortgage upon the furniture in controversy to C. Storrs, in trust to secure such indebtedness. After-wards, in 1874, the said Olive rented of William F. Holtzman a certain house on F street in this city, for which she agreed to pay $150 per month. She moved into the premises, takiug with her furniture embraced in the chattel mortgage. On the 12th day of March, 1875, she was in arrears of rent to the amount of $825, and Holtzman, the landlord, in order to enforce his lien, issued a writ of attachment, by virtue of which the furniture was seized as the property of Olive W. Hechtman. Previously to the commencement of the attachment suit, and some days before the maturity of the note given-to John Hechtman February 17, 1872, and while the furniture was on Holtzmau’s premises, Olive renewed the note and gave a new chattel mortgage, executed by herself and O. Storrs, trustee in the former deed, reciting the nonpayment of the note and conveying the same property to the plaintiff to secure the payment of the new note. The last note aiid deed were executed with the consent of all the parties to the first. The action of replevin is brought against the marshal who executed the writ of attachment, by the new trustee in the second deed of trust. The counsel for plaintiff asked the court to instruct the jury that the mere change of trustee effected by the deed of February 15, 1875, by and with the consent of the cestui que trust, created no vacancy in the trusteeship which would let in the lien of the landlord upon the furniture for his rent; but the said justice refused so to instruct the jury, but did instruct the jury that the substitution of the new note for the old one, and the execution of the second deed, operated to postpone the lien of John Hechtman, the cestui que trust, and to let in the landlord’s lien for rent; and further, that if they found from the evidence that the note secured by the first deed of trust was destroyed, and a new note given therefor and secured by a hew deed upon the furniture to a different trustee, substituted for the first one, the lien of the new deed of trust, if duly accepted and recorded, took effect from its date only. Plaintiff’s counsel excepted to the refusal of the court to instruct the jury as prayed, and also to the instructions given to the jury in the charge of the court as above. The verdict was in favor of the defendant, and the ease is here on appeal of the plaintiff.
    
      W. B. Webb and B. 3. Webb, for plaintiff.
    The renewal of the note by Olive ITechtman and the execution of the new deed of trust under date of February 15, 1875, did not operate as a payment of the old note. The burden of proof is upon the defendant to show that the renewal note was accepted as payment.
    In Peter v. Beverly, 10 Peters, 567,the Supreme Court say: “ The law on this subject is well settled, and the principle well and succinctly laid down in the ease of James v. Hackly, 16 Johns., 277. It is,” say the court, “a settled doctrine that the acceptance of a negotiable note for an antecedent debt will not extinguish such debt, unless it is expressly agreed that it is received as payment. * * * The evidence must be certainly so clear as to leave no reasonable doubt that such was the intention of the parties. And the rule to this extent is settled by the most unquestioned authority.” (Glenn v. Smith, 2 Grill & Johns., 493.)
    And further, in the ease cited above from 10 Peters, the Supreme Court say that the substitution of notes, by way of renewal of notes already existing, operates to continue the debt, and is not in any manner to be considered as an extinguishment of the debt.
    Where a new note is taken for the same debt mentioned in the old note, without an agreement to deliver up the old note, or that the new note shall be taken in satisfaction for the old note, the new note has ever been considered a mere collateral security, which does not affect or vary the rights or liabilities of the parties in any respect whatever. And it follows, that where such an agreement is not proved by those who rely upon it, it should be deemed not to exist. (Wheeler v. Schroeder, 4 Rhode Island, 383 ; Berry v. Chiffin, 10 Md., 27; Canfield v. Ives, 18 Pick., 255; 2 American Leading Cases, 270, 271.)
    The deed of trust is, in effect and purpose, a mortgage; it is given to secure a loan, and creates an express lien upon the chattels in question. The landlord’s lien is a tacit lien created by law; it attaches to the chattels of the tenant as soon as they are placed upon the demised premises, and continues as long as they remain there. Put there is nothing in this lien which displaces the incumbrance created by a mortgage of said chattels existing at the time when they were placed upon the landlord’s premises., (Webb v. Sharp, supra.)
    
    Mr. Greenleaf says, in a note to Greenleaf’s Cruise on Real Property, book II, p. 156, n. 1: “-The mortgage being made to secure the payment of the money .due, it follows that a change of the security, so long as the same debt remains, is no discharge of the mortgage. It has, therefore, been held, that though the former security be given up, and a new one given for the same debt, the mortgage still remains in force, even though the new security be of a higher nature than the old, or other names be added to the original obligation.” (Davis v. Maynard, 9 Mass., 242; Watkins v. Hill, 8 Pick., 522; Pomroy v. Rice, 16 Pick., 22; Binkerhoff v. Lansing, 4 Johns. Ch., 73, 74; Dunham v. Day, 15 Johns. R., 555.)
    The chattels in question cau be relieved from the incumbrance created by the deed of trust of 17th February, 1872, in one of two ways only: there must be a formal release, or the debt secured by the deed must be extinguished. It is submitted that the deed to John F. Hechtman is not a release, and that the renewal of the note in question does not extinguish the debt; so that, at the time of the attachment taken out by Holtzman, the furniture taken was not subject to that writ under the terms of the act of February 22,1867.
    
      William Birney, for defendant.
   Mr. Justice Mac Arthur

delivered the opinion of the court:

We think the ruling of the court below was right. There is no dispute about the right of a landlord to a lien upon his tenant’s chattels unincumbered at the time when placed on the premises, or which, being incumbered at that time, may become free from incumbrance during the tenancy. The furniture was subject to a deed of trust when it was moved upon the premises, and the main question is as to the effect of the second deed upon the landlord’s lien. It is true that a new note given for a former one will not extinguish the indebtedness unless it is received(in payment; and if the transaction here were simply the renewal of the note, it would still he a charge under the deed upon the furniture. But this is not the view in which .the exceptions are presented; for the jury were instructed that if they found from the evidence that the note secured by the first deed of trust was destroyed and a new note given therefor, secured, by a new deed upon the furniture, to a different trustee substituted for the first one, the lien of the new deed of trust, if duly accepted and recorded, took effect from its date only, and that this state of facts would operate to postpone the lien of the' cestui que trust and to let in the landlord’s lien for rent. The ease is not, therefore, that of a note given in renewal for the amount due upon a former one which was secured by a mortgage, but it is the case of a new note secured by an entirely different instrument vesting the title in another party. Whether the original debt was extinguished as between grantor and the cestui que trust, or .whether there was an understanding between them that the new mortgage should stand as security, it cannot affect the rights of the landlord. His lien was undoubtedly postponed to the original security; but when that was removed, his lien was good against all subsequent incumbrances. The action is brought by the new trustee, who certainly can claim no priority except from the date of the deed under which he became a trustee. (See act of Congress of February 22, 1867; Webb v. Sharp, 13 Wall., 15.)

The judgment ought to be affirmed.  