
    ELI B. SANDERS, plaintiff in error, v. A. B. McAFFEE et al., defendants in error.
    (Atlanta,
    January Term, 1871.)
    WAI-VER OF VENDOR’S LIEN.—The lien of the vendor of real estate for the unpaid purchase-money, is not absolutely waived by taking the notes of the vendee, with a third person as security thereto. Such an act is prima facie a waiver, but the effect of the same may be rebutted by proof that it was not the intent of the parties to waive the lien. See Warner, J., concurring.
    Vendor’s Lien. Bona fide purchasers. Before Judge Harrell. Randolph Superior Court. May Term, 1870.
    The bill of Sanders made the following case against McAffee and Owens: On the 9th of October, 1861, Sanders sold to Samuel W. Anthony, now residing out of this State, the north half of land, lot number eighty-seven, in the ninth district of said county, made him ¿ fee-simple title thereto, and Anthony went into possession thereof under his deed. The sole consideration was $1,300 00, to be paid by the 1st of January, 1863, for securing which payment said Anthony and his brother Oliver, also now residing out of this State, gave Sanders their joint and several promissory note. They were sued upon this note and judgment was entered against them in November, 1863, and it is yet unpaid, except *$156 00, paid on the 9th of May, 1869. On the 8th of January, 1864, S. W. Anthony conveyed said land to McAffee and Owens, of said county, who had actual notice that ■ said purchase-money was unpaid. The Anthonys are insolvent, and Sanders wishes to enforce his vendor’s lien against said land.
    A demurrer to this bill was overruled. By amendment, Sanders averred that he traded with S. W. Anthony alone; at the time refused to put into said note other indebtedness of his to Sanders, telling him that he wished a separate- note for the land, that he might retain his lien on the land, and that S. W. assented to • this. Oliver -was present,. but Sanders was then first advised that he would'sign the note.- Sanders knew they were farming together, and supposed this matter was privately arranged between them and took the joint note, not supposing Oliver was a security for S. W., but that S. W. was buying for both, and that the note bound both as principles. As the answers of defendants were waived, and therefore are not evidence, they are not material. The defense was that they had bought bona fide, for value, and held possession for four years, without notice of Sanders’ lien, and that he had no lien, because he waived the vendor’s lien by taking security for the price of the land. The cause was submitted to the jury on the following evidence and admissions made for the purposes of the trial:
    It was mutually admitted that the land in dispute was conveyed, by deed, by complainant to Samuel W. Anthony, at the time and for the consideration specified in the bill, and that the promissory note therein described was given for said land, and sued into judgment, as alleged, and now remains unpaid, except as to the credit stated; that O. P. Anthony was not, in fact, interested in said purchase, but was only a security to said note, though his name was not signed as security; that defendants bought said land from S. W. Anthony, took his deed, paid the purchase-money, and went into possession at the time alleged, and still holds the same; that the fi. fa. from said judgment was not levied on said land until defendants had had over four years’ possession thereofj *under said purchase; and that the makers of said note are insolvent.
    'Complainant then read the interrogatories of Lewis A. Goneke, who testified as follows: “Some time in the Fall of 1863, Colonel Anthony introduced me to McAffee and Owens and informed them that I was living near his plantation and could give them full information in relation to the place. Mc-Affee, Owens and myself withdrew apart from the crowd, and they made several inquiries in relation to the place, the neighborhood and the circumstances and condition of the Anthonys; and among other facts communicated to them by me, at that time, I mentioned that Sanders had sold to Dr. Anthony the north half of lot number eighty-seven; that the debt, or a large portion of it, was then standing open, and in suit or judgment; I cannot now say that I knew of the existence of Sanders’ judgment; I knew of the debt; I knew for what it was contracted; I knew it was sued, and may have known that it was in judgment. They sought information from me, and I desired to communicate to them all that .1 knew, SO' that they might not be damaged.”
    Complainant read also, from the depositions of the Rev. Samuel Anthony, the father of S. W. and Oliver Anthony, as follows:
    “I was present in the office of T. R. Stewart when J. R. Owens and Dr. S. W. Anthony met there to close the trade of land from Anthony to McAffee and Owens. Mr. Owens inquired if there were any incumbrances oh the property. Dr. Anthony replied: “None, except the claim of Sanders, of which I told you, and which Mr. Stewart knows all about.” Mr. T. R. Stewart remarked, that he knew all about the affairs of the two Anthonys (O. P. and S. W.), and that there was nothing against the land except the claim of Sanders, which was in his hands for collection or settlement, and that there was a plenty of assets outside of the land to pay that. I' think he said assets enough in his hands *to settle the Sanders ‘ claim. He, Stewart, further remarked, that he believed, that when Sanders knew that the land was sold, he then would be willing to settle the claim with him. Mr. Stewart ^further said, that if the Sanders claim should ever come against the land, he, Stewart, would be responsible for it. I think Mr. Owens apprehended no difficulty about the title, as I, myself, certainly apprehended none. McAffee and Owens acted in good faith, as far as I know and believe; they payed the money promptly, part cash and the balance soon; and I don’t think any one connected with the affair apprehended difficulty with the Sanders claim. Stewart said, he believed he could settle the claim with Sanders, when he knew the land was sold. I understood Stewart to give it as his opinion, that he could make the settlement, and not that he had authority to say so from Sanders. Sanders was not present.”
    Complainant next proposed to testify himself, as follows:
    “S. W. Anthony came to me to buy the land, and, of his own accord, stated that O. P. Anthony was to sign the note with him. I did not require security of said S. W. I knew that he and O. P. were largely interested together in the planting business, and from that fact and the statement above of S. W., I inferred that they were to be jointly interested in the purchase. Afterwards, when we went to execute the papers, S. W. drew the deed conveying to himself alone, which I supposed to be according to some arrangement between themselves consistent with their partnership plans, and threfore did not object. S. W. Anthonv started, then, to make the note to include, with the price of the land, that of some mules, which I had sold to them. To this I objected, on the express ground, that the note was intended to have a lien on the land, and ought, therefore, to be kept separate. To this they assented, and therefore gave the note described in the bill, for the land, and a separate note for the mules. Though admitting now, for the purposes of this trial, as a fact established by after proof, that O. P. Anthony was only a security, I did not so understand or intend when the trade and note was made. I never intended to take security, nor to waive the vendor’s lien on the land.”
    This evidence was, on objection, rejected as irrelevant.
    For the defense, J. R. Owens, one of the defendants, testified, *that, to the best of his recollection, he had not, at the time of said purchase, nor before, any notice, that the purchase-money due to complainant was unpaid; that if L. A. Goneke so informed him, he has forgotten it; that, in reply to his (witness’) question, whether there were any incumbrances on the land, T. R. Stewart (when the deed was about being executed) informed him that there was none, except a claim in Randolph Court and one in Clay Court, but did not inform him that they were for the purchase-money. He does not remember hearing Sanders’ name mentioned, at that time. Stewart represented himself as the attorney, who had the claim for collection. At the time of this conversation, Stewart was acting as counsel and conveyancer for both the vendor and vendees, in this trade, and each party paid him ten dollars for his services.
    Defendant McAffee, testified for the defense, that to the best of his recollection and belief, he never was informed by any one before the purchase, that the purchase-money was still due to the complainant, that he was not present when the deed was executed, and did not hear the above conversation between Stew-ant and Owens.
    The evidence and argument closed, complainant’s counsel asked the Court, in writing, to charge the jury thus:
    “If the jury believes from the evidence, that defendants bought the land with notice that the purchase-money due complainant was unpaid, the fact that O. P. Anthony (being only a security) signed the note with S. W. Anthony to complainant for the purchase-money, did not prevent complainant from having a vendor’s lien on the land.”
    The Court refused to give said charge, but instructed the jury, that if, in fact, complainant made a deed to S. W. Anthony, and took his note for the purchase-money, with O. P. Anthony’s name, also thereto, and if the latter was not interested, but a security, complainant has no lien on the land.
    The jury found for defendants.
    It is claimed that the Court erred, first, in rejecting the aforesaid testimony of complainant; second, in refusing to ^charge the aforesaid proposition requested by the complainant, in writing; and, third, in charging the reverse as aforesaid.
    John T. Clark, for plaintiff in error,
    said taking security is but presumptive evidence of waiver of vendor’s lien: 2 Story’s Eq., sec. 1226 and Note; 3d Kelly, 342; Adams’ Eq., top p. 204; Note 1, 285. Notice of unpaid purchase-money is sufficient notice: 2 Story’s Eq., secs. 1217, 1219, and Note to 1226.
    H. Fielder, for defendant.
   McCAY, J.

We think it is well settled that the taking of the notes of the purchaser, with a third person as security thereto, is not a conclusive waiver of the vendor’s lien. The true basis of such a lien arises out of the nature of the transaction. If other security be taken, prima facie, the lien is waived, since it is a fair presumption, from this fact, that the land was not looked to as the security: 1 White & Tudor, Equity Cases, 242-247. But this presumption may be rebutted. The vendor may show that, notwithstanding the other security was taken, the lien on the land was not intended, between the parteis, to be waived. The burden of proof is upon the vendor: White & Tudor, Equity Cases, 242-247. ■ _

_ It was error in the Court to reject the evidence offered by Sanders, since it went to rebut the presumption arising from the fact that O. P. Anthony, the security, signed the note. It is said that there was no evidence that McAffee and Owens knew anything of the facts proposed to be proven by Sanders, and that the error of the Court was therefore 'harmless. We are not sure that, under the facts as they were proved before the jury, they might not have some right to infer that Anthony had told them of all the facts, as they actually existed. At any rate, as the evidence of. Sanders was excluded, he 'was not called upon to prove that Owens and McAffee knew what the Court held to be immaterial.

*We express no opinion as to the weight of the evidence, either of notice or the necessary effect of the evidence ruled out by the court.' All we decide is, that the evidence ought have gone to the jury. Its weight was for them to consider, whether there was a \waiver or not of the lien, whether there was a rebuttal of the prima facie effect of the act of taking security, and whether McAffee and Owens had notice, were all questions of fact for the determination of the jury under the charge of the Court as to the law.

As the evidence of Sanders was rejected, and was not before the jury, we see no error in the charge of the Court, as the case then stood, since there was nothing to rebut the presumption of waiver arising from the admitted fact that O. P. Anthony was only security to the note. The error was in rejecting the testimony.

Judgment reversed.

WARNER, J.,

concurring.

When, on the trail of a bill filed to assert and enforce vend- or’s lien for the unpaid purchase-money due for the land sold, the Court was requested in writing to charge the jury, “If they should believe, from the evidence, that defendants bought the land with notice that the purchase money due complainant was unpaid, the fact that O. S- Anthony (being only a security) signed the note with S. W. Anthony to complainant for the purchase-money, did not prevent complainant from having a vendor’s lien on the land,” which charge the Court declined to give, but on the contrary, charged the jury, “That if in fact, complainant made a deed to S. W. Anthony, and took his note for the purchase-money, with O. S. Anthony’s name also thereto, and if the latter was not interested, but a security, complainant had no lien on the land:”

Held, That the mere fact of taking security on the note given for the purchase-money of the land, does not of itself necessarily defeat the vendor’s lien, and that the Court below erred in not charging the jury as requested, and in charging the jury as stated in the record; as the charge as given, withdrew *from the consideration of the jury that part of the evi- . dence, which went to show that the defendants purchased the land with notice that the purchase-money for the land had not been paid at the time of the purchase. The jury should have been allowed to consider and pass upon that evidence, and to have given to it such credit and weight as in their judgment it was entitled to, under the circumstances which attended the transaction between the parties. I also concur in the judgment of reversal, on the ground that the Court below erred in rejecting the evidence of Sanders, as stated in the record.  