
    MEARS v. KEARNEY.
    
      N. Y. Superior Court; Special Term,
    
    
      January, 1877.
    Harried Woman’s Note.—Mortgage op Separate Estate.—Vendor’s Lien.
    A note given by a married woman to secure to the vendor of lands conveyed to her, purchase money thereof, and designating the land, and expressing her intent to charge it as her sole and separate estate, for payment of the note, may be enforced by an action of foreclosure.
    
    The doctrine of vendor’s lien expounded,
    
    Trial by the court.
    Anna B. Hears brought this action in equity against Catherine Kearney, to foreclose a promissory note, upon the ground that the note was given by the defendant to the plaintiff for a balance of the consideration money due from the former to the latter, on the sale of a house and lot to the defendant by the plaintiff. The note is as follows ;
    “June 33, 1876.
    “Ninety days after date, I promise to pay to the order of Patrick Kearney, one hundred and seventy-five dollars, at the Fifth National Bank, New York, and for the payment of which I pledge my sole and separate estate, being 514 West Forty-third street, New York. (Signed) Catherine Kearney.”
    (Indorsed) “Patrick Kearney.”
    The complaint, after setting forth the facts of nonpayment of the note, and that the amount due was the balance of the purchase money of the conveyance of the premises to the defendant, demands judgment that the lien be foreclosed, and that the mortgaged premises be sold, that the money be brought into court, and that the plaintiff be paid the amount due for the obligation and pledge of the defendant, with interest and costs, &c., and that the defendant be adjudged to pay any deficiency.
    
      The answer admits the making the note, and that it was given for a portion of the purchase money, but denies that by giving" it the defendant intended to, or did in fact, incumber the real estate to the amount named in the note, or created any lien on the premises, and denies that the plaintiff is entitled to the ruling or decree of this court for the foreclosure of the note, as a mortgage upon defendant’s separate estate.
    
      A. H. Wagner, for plaintiff.
    I. The claim is en-forcible against the property on two grounds, which run together, and may be considered together.
    II. An equitable lien for unpaid purchase money exists (Carson Green, 1 Johns. Ch. 308 ; Gilman v. Brown, 1 Mas. 191; Tompkins v. Mitchell, 2 Rand. 438; Warner v. Van Alstyne, 3 Paige, 514; Fisk v. Potter, 3 Abb. Ct. App. Dec. 138).
    III. Taking of the vendee’s note does not discharge, the lien (Cases cited, and see Mackreth v. Symmons, 15 Vesey, 339 ; Fish v. Howland, 1 Paige, 30).
    IV. Collateral security is only presumptive evidence, of waiver, and may be rebutted by evidence from other circumstances, of an intention not to rely exclusively upon it (Campbell v. Baldwin, 2 Humphreys, 248 Marshall v. Christmas, 3 Id. 616).
    V. The lien may be enforced without exhausting, the remedy upon the note (High v. Batte, 10 Yerger, 186 ; Richardson v. Baker, 5 J. J. Marsh. 323).
    VI. The vendor, having this equitable lien, may have so much as may be necessary sold for the disr charge of the debt (Mullikin v. Mullikin, 1 Bland, 538 Wilson v. Davisson, 2 Robinson (Va.) 385 ; McGee v. Beall, 3 Littell, 190; Outton v. Mitchell, 4 Bibb, 239)..
    VII. The lien will be enforced against a purchaser, for value with notice, actual or constructive, on the face of the deed or aliunde, that the purchase money is unpaid (Wilcox v. Calloway, 1 Wash. Va. 38; Red-ford v. Gibson, 12 Leigh, 332-347; Pierce v. Gates, 7 Blackf. 162 ; McKnight v. Bright, 2 Mo. 110).
    YIII. Before bill filed, it is a mere equity or capacity to acquire a lien; thereafter, it becomes a specific lien, dating back to the time of the conveyance.
    IX. The note is conclusive as to intent to create and continue the lien.
    
      J. H. Southworth, for defendant.
    
      
       Consult as to actions to establish and foreclose peculiar liens,— Lanning v. Carpenter, 48 N. Y. 408; Guernsey v. Rogers, 47 Id. 233; Hale v. Omaha Nat. Bank, 49 Id. 626; rev’g 33 Super. Ct. [J. & S.] 40; L. 1869, p. 1785, c. 738.
    
    
      
       See also Smith v. Smith, 9 Abb. Pr. N. S. 420, and cases cited.
    
   Speir, J.

[After stating above facts.]—It is well settled that the vendor has a lien on real estate for the purchase money, or any portion thereof, while the estate is in the hands of ^ the vendee, and when there is no contract that the lien by implication, was not intended to be reserved. This lien of the purchase money on the land is so firmly established in equity, that it lies on the purchaser to show that the vendor agreed to rest on other security, in order to be discharged from the obligation (Garson v. Green, 1 Johns. Ch. 308 ; Sugden, ch. 12, p. 352; 1 Sch. & L. 132 ; 1 Bro. 420).

The chief question under this class of equity actions, which has created some diversity of opinions in the earlier cases, has been what constitutes a waiver of the lien.

There is no question if the vendee sells to a person without notice, the lien is lost.

So the lien is waived, where a note or bond is taken of the vendee for the purchase money, in which a third person joins as security. But the decisions are now quite unanimous, that the grantor’s taking the mere personal security of the purchaser only, does not waive his lien, unless there be an express agreement between the parties, that the equitable lien be waived. But whenever any security is taken on the land sold or otherwise, for the whole or part of the purchase money, the equitable lien will be waived unless there be an express agreement that it shall be retained.

In the case at bar, the memorandum note and agreement show that the lien on the land was positively made the prime security for the balance of the par-chase money, on defendant’s separate estate; and the allegation in the complaint alleges no other separate estate, and that the land is expressly charged with the lien, and there is no evidence of any waiver.

The plaintiff is entitled to judgment of foreclosure, with costs.  