Pease v. Kelly

Boise, J. In this case, Moore took a note and security on the land for the purchase money. A mortgage is a more certain and definite security than a vendor’s lien. The lien exists if there is no higher security, but we think that the taking of a mortgage, which is an open and public lien, is a waiver of the vendor’s lien, and we think that both liens cannot exist at the same time, and such seems to be the well established doctrine of the cases. (Brown v. Gilman, 4 Wheat. 255; Fish v. Howland, 1 Paige, 30; Hunt v. Waterman, 12 Cal. 30; Camden v. Vail, 23 Cal. 633; 1st Leading cases in Equity, 365; 27 Ill. 422.) This view of the matter necessarily disposes of all the questions in the case, and it will not be necessary in disposing of the case, to consider the numerous other points which were disbussed on the argument. The judgment will bo reversed.