
    Boies v. Gardner et al.
    
    
      (Supreme Court, General Term, Third Department.
    
    July 6, 1889.)
    Mortgages—Priority—'Vendor’s Lien.
    Plaintiff sold a tract of land to G-. for $1,800, $100 of which G. paid in cash. G. then borrowed $1,000 of defendant, paid plaintiff S900 thereof, gave plaintiff a mortgage on the tract, reciting that it was to secure the purchase price, for $800, and gave defendant a mortgage on the same tract for the $1,000 loaned. Both mortgages were executed at the same time, and, by agreement of all the parties, were recorded at the same time, but defendant’s mortgage did not contain a recital that it was given to secure the purchase price. The evidence did not show that plaintiff expressly agreed to admit defendant’s mortgage to an equality of lien with his own. Heldr that plaintiff’s mortgage takes precedence of defendant’s.
    Appeal from judgment on report of referee. Action by E. Willard Boies to foreclose a mortgage. The plaintiff and the- • defendant Sarah Benliam eacli held a mortgage given by the defendant Gardner on the 11th of March, 1884, upon premises which the plaintiff on the same-day conveyed to Gardner. The price of the premises was $1,800, $100 of which Gardner had paid to the plaintiff. Gardner borrowed $1,000 of defendant Benliam, and $900 of it to and e a for $800, and at the same time gave a mortgage to Benham for the $1,000. The transactions took place at the same time and place, and it was agreed that the two mortgages should be recorded at the same time, and they were both so recorded. The mortgage to the plaintiff recited that it was given to secure payment of a portion of the purchase money. The mortgage to Benham did not so recite. The conversation of the parties at the time of the execution of the mortgages was given in evidence, the contention of the defendant Benham being that it was agreed that her mortgage should be of equal lien with that of the plaintiff. The referee finds that the mortgages were of equal date, that both were given for the purchase money, and both by agreement recorded of equal date; but does not find that it was agreed that they should be of equal lien, and does find that the plaintiff never parted or intended to part with his equitable lien upon said premises for the purchase money; and thereupon found that the plaintiff’s mortgage had the priority of lien. The defendant Sarah Benham appeals.
    Argued before Learned, P. J., and Landon, J.
    
      &. L. Danforth, for appellant. Hiller & Palmer, for respondent.
   Landon, J.

The-burden rested upon the defendant Benham to show that

the plaintiff, as vendor of the premises and the holder of a mortgage of equal date and record with her own, did, either by act or omission, so far waive the priority which his vendor’s lien gave him for the purchase money as to admit the defendant’s mortgage to an equality of lien with his own. The vendor’s lien for the purchase money is prior to any other lien which the vendee can give upon the land except by the vendor’s consent, expressly given, or implied from his acts or omissions. Dusenbury v. Hulbert, 59 N. Y. 541; Ellis v. Horrman, 90 N. Y. 466; French v. Le Roy, 15 Wkly. Dig. 269. The vendor’s equitable lien is waived by taking a mortgage.. Fish v. Howland, 1 Paige, 20. The referee has found that the plaintiff did not part with his equitable lien. Upon examination of the evidence we think the defendant did not quite make it appear that the plaintiff consented to admit her mortgage to an equality of lien with his own, and hence did not maintain the burden she assumed. The case of French v. Le Roy, above cited, was fully as strong for the defendant as is the present, but the equitable lien prevailed. The defendant urges that because the referee has found that the mortgage to her was also given for the purchase money, it is thus admitted to an equality with plaintiff’s mortgage in that respect, and because it stands equal in date and record all the requisites of equality are shown. The money for which the mortgage was given to Benham was purchase money to the amount of $900, as between Benham and the purchaser, in the sense that the purchaser could not by agreement with third persons give to them alien upon the land prior toBenham’s. Benham’s equity is in like manner and for like reasons as superior to that which the purchaser can give to third persons as the plaintiff’s equity is superior to hers. The land comes from the plaintiff. Until the purchase price is secured to him his grantee has nothing to mortgage to Benham. That security given, then the grantee can mortgage to Benham, subject to plaintiff’s prior lien. Benham, having advanced part of the purchase price, is equitably entitled to whatever security the land can afford him, before the judgment liens, dower right, or mortgages of third persons, who have advanced nothing towards vesting the legal title to the land in the grantee, can be allowed. This is the extent to which the money lent by Benbain and paid to the plaintiff becomes purchase money. Jackson v. Austin, 15 Johns. 477; Cunningham v. Knight, 1 Barb. 399; Kittle v. Van Dyck, 1 Sandf. Ch. 76. The judgment is affirmed, with costs.

Learned, P. J.

I concur in the result, but I think that plaintiff’s mort-

gage was a waiver of his equitable lien as vendor. Fish v. Howland, 1 Paige, 20. But it is not shown that he waived his right to priority over any other security.

Ingalls, J., not acting.  