Stuart v. Harrison

Seevers,- J. — Whether a vendor’s lien should be regarded as waived because a mortgage has been taken on other property is not in this case. But where a mortgage is taken on the same, property sold it evinces, we think, an unmistakable intent on the part of-the vendor to waive the lien. The latter is a mere equity, and must be regarded as merged or displaced by the mortgage. The two are inconsistent, and cannot exist and be enforceable at the same time. Young v. Wood et al., 11 B. Mon., 123, is precisely in point and we are content to follow it, without restating what has been so well said in that case. Affirmed.