note; and it will not be discharged if the renewal is taken up and paid by the mortgagee.12 So, if the renewal includes accrued interest. 13 or if the interest is indorsed on the original note, and a 'separate note given for it.614 A note for the interest will not discharge the lien of the mortgage without an agreement to that effect. 615

In like manner, if the renewal of a note is made to a different payee, the original mortgage will still be available as collateral.616 So, if accommodation acceptances of A. are given as collateral for other acceptances by B., and the latter are paid by the proceeds of renewals by B., the collateral (being left in the holder's hands without presentment for payment) will cover the renewals. 617

On the other hand, the guaranty of notes to a certain amount by A., to be indorsed by B., has been held not to cover a subsequent renewal by A. and C., indorsed by B.618 So, if a note is made payable at a bank, and secured by a trust deed, and a second note and trust deed are given by the maker to discharge the first, and the first is paid by the bank to the holder, upon his indorsement without recourse, it will be a payment, and not a renewal of the original note, and will discharge the first trust deed. 619 And in Pennsylvania a mortgage given to secure a note will not cover the renewal

berly (Pa. Sup.) 7 Atl. 75; McNamara v. Condon, 2 MacArthur (D. C.) 364; Collins v. Dawley, 4 Colo. 138; Vick v. Smith, 83 N. C. 80.

€11 Watkins v. Hill, 8 Pick. (Mass.) 522; Pomroy v. Rice, 16 Pick. (Mass.) 22; Taber v. Hamlin, 97 Mass. 489; Kidder v. McIlhenny, 81 N. C. 123; Bodkin v. Merit. 86 Ind. 560; Walters v. Walters, 73 Ind. 425; especially where this is expressly stipulated, McNamara v. Condon, 2 MacArthur (D. C.) 364. So, where a renewal with a forged signature had been used to take up the original. Egan v. Fuller, 35 Minn. 515, 29 N. W. 313.

612 Boxheimer v. Gunn, 24 Mich. 372.

612 Elliott v. Sleeper, 2 N. H. 525; or interest in advance, Union Nat. Bank v. Slocomb, 34 La. Ann. 927. But see, contra, where the renewal includes other new matter, Ladner v. Balsley, 103 Iowa, 674, 72 N. W. 787.

€14 Sears v. Wemprer, 27 Minn. 351, 7 N. W. 362.

615 Hutchinson v. Swartsweller, 31 N. J. Eq. 205.

16 Burdett v. Clay, 8 B. Mon. (Ky.) 287; McCormick v. Digby, 8 Blackf. (Ind.) 99.

*17 Woodroffe v. Hayne, 1 Car. & P. 600.

18 Russell v. Perkins, 1 Mason, 368, Fed. Cas. No. 12,160.

019 Christian v. Newberry, 61 Mo. 446. And see, as to successive pledges of the same property, Fairbank v. Bank, 132 Ill. 120, 22 N. E. 524.

of it.20 If a bond is deposited by A. as collateral for his ne, and the note is taken up by a stranger, B., without A.'s knowledge, and B.'s note given in renewal, and the collateral is left by B. with the holder, and afterwards sold on maturity of the renewal, without notice to A., it cannot be applied to the renewal, and A. may have trover against the holder for the bond."21

Vendors' Lien-Stoppage in Transitu.

624

§ 1572. A note is presumed not to be an absolute payment if a lien securing the original debt would be lost thereby.22 Thus, a vendor's lien for goods sold will not be discharged by the purchaser's acceptance, 623 or by his note or renewal. 62 In Indiana, however, it will be discharged by such note, in the absence of an agreement to the contrary.625 If the purchaser gives his bill in payment for goods, and the goods remain in the vendor's hands, the right to enforce his lien will revive on the dishonor of the bill. 28 And if goods are sold by A. to B., and resold by B. to C. (who was a clerk of A., but known by him to be doing business for himself), and C. pays B. by his acceptance, and during the running of the bill marks the goods in A.'s store, but does not receive them into his possession, B.'s lien for the price will not be extinguished by the acceptance.627

In like manner, if a note is given for goods purchased, and the goods are shipped, but retained in the custom house until the note

620 Ayres v. Wattson, 57 Pa. St. 360; Moorehead v. Duncan, 82 Pa. St. 488. But see, contra, as to a collateral judgment, Laucks v. Michael, 154 Pa, St. 355. 26 Atl. 314.

621 Burnap v. Bank, 96 N. Y. 125.

622 Sweet v. James, 2 R. I. 270.

623 Feise v. Wray, 3 East, 93.

624 Walker v. Struve, 70 Ala. 167; Hess v. Dille, 23 W. Va. 90; McElwee v. McElwee, 97 Tenn. 649, 37 S. W. 560; Roberts v. Bruce, 91 Ky. 379, 15 S. W. 872.

625 Schneider v. Kolthoff, 59 Ind. 568.

626 Byles, Bills, 392; 2 Daniel, Neg. Inst. 302; 2 Pars. Notes & B. 165; New v. Swain, 1 Dans. & L. 193; Valpy v. Oakeley, 16 Q. B. 941. The lien is not lost while the goods remain in his possession. Milliken v. Warren, 57 Me. 46. And, if a demand note is given for property purchased, an intention to discharge the lien will not be presumed. Clark v. Draper, 19 N. H. 419. 627 Dixon v. Yates, 5 Barn. & Adol. 341.

is dishonored, the vendor will still have a right of stoppage in transitu.€28 So, if consignments are made to one another by A. and B., and B. draws his bill on A. for the difference in value between the consignments, he may still stop the goods, if the bill is protested, although he had received a part payment, and a bill for the balance drawn by A. on his vendee, C.629 But if goods are sold to A. upon B.'s order, stipulating for payment in other goods, they cannot be stopped in transitu on B.'s failure.630

Vendor's Lien on Land.

§ 1573. If a bill is given for the purchase of land, it will, in like manner, leave the vendor's lien undisturbed. 63: And such lien will remain good against a purchaser with notice,632 and will not be discharged by a renewal of the bill.33 So, if a note is given in part for land purchased, it will be secured pro tanto by the vendor's lien. €34 And if land is sold to A. and B., and their several notes taken for it, the vendor's lien will not be discharged.635 And such

628 Donath v. Broomhead, 7 Pa. St. 301.

629 Newhall v. Vargas, 13 Me. 93.

630 Eaton v. Cook, 32 Vt. 58.

631 Byles, Bills, 391; 2 Daniel, Neg. Inst. 303; 2 Pars. Notes & B. 166; Ex parte Loaring, 2 Rose, 79; Grant v. Mills, 2 Ves. & B. 306; Garson v. Green, 1 Johns. Ch. (N. Y.) 308; Whetsel v. Roberts, 31 Ohio St. 503; Marsh v. Turner, 4 Mo. 253; Knisely v. Williams, 3 Grat. (Va.) 265; Lagow v. Badollet, 1 Blackf. (Ind.) 416; Martin v. Cauble, 72 Ind. 67; Ross v. Whitson, 6 Yerg. (Tenn.) 50; Sheratz v. Nichodemus, 7 Yerg. (Tenn.) 9; Kennedy v. Woolfolk, 3 Hayw. (Tenn.) 195; unless it is otherwise secured, Hunt v. Marsh, 80 Mo. 396. But a note with a married woman as surety, which was not binding upon her by the law when it was made, is not sufficient to discharge the lien. Felton v. Smith, 84 Ind. 485. If a note for real property expressly reserves the vendor's lien, it is not discharged, of course, Hall v. Railroad Co., 58 Ala. 10; and may be foreclosed in the decree, although not mentioned in the verdict, Slade v. Young, 32 Tex. 668.

632 Wynne v. Alston, 16 N. C. 163.

633 Woodward v. Echols, 58 Ala. 665; Aillet v. Woods, 24 La. Ann. 193. So, as against a wife's homestead claim, where the deed was to the wife, and the note and renewal were by husband and wife. Haynie v. Watson, 70 Ga. 707. 634 Swain v. Cato, 34 Tex. 395.

635 Hoggatt v. Wade, 10 Smedes & M. (Miss.) 143.

636

lien is not discharged by the purchaser's bond, and will be available after his death as against his creditors.637

639

640

In like manner, the vendor's lien will not be discharged by a check which is void; G38 or by a bill which is not sufficiently stamped; *** or by a note, neither negotiable nor collectible, given under an agreement for a good and negotiable note of another person; or by a note payable "in Mississippi certificates of indebtedness." $41 And the vendor's lien will remain, although notes taken for the purchase money are barred by the statute of limitations. 645

Vendor's Lien-Note by or to Third Person.

§ 1574. In like manner, a vendor's lien is not discharged by taking a note from the purchaser payable to a third person.643 Thus, A. may have a vendor's lien for a note payable to him, but delivered to the original vendor, E., and reciting that it was given for "balance due on land purchased of E." 644

And it has been held that the vendor's lien will not be discharged

636 Cox v. Fenwick, 3 Bibb (Ky.) 183; Yancey v. Mauck, 15 Grat. (Va.) 300; although it is made payable 12 months after the death of the vendor, Winter v. Anson, 1 Sim. & S. 434, 3 Russ. 488. And if a bond secured by a vendor's lien is afterwards merged with other debts in a larger bond, and the latter is reduced by part payments, and finally surrendered on a confession of judgment, expressly reserving the original lien, it will be applied pro rata to all of the debts secured by the second bond. Coles v. Withers, 33 Grat. (Va.) 193. 637 White v. Casanave, 1 Har. & J. (Md.) 106.

638 Bond v. Warden, 1 Colly. 583. On the other hand, a trustee who conveys to his cestui que trust retains no lien for his services and advances, although he took a worthless check from the grantee for them. O'Connor v. Smith, 40 Ohio St. 214.

639 Byles, Bills, 392; Cundy v. Marriott, 1 Barn. & Adol. 696.

640 Gee v. McMillan, 14 Or. 268, 12 Pac. 417.

641 Deason v. Taylor, 53 Miss. 697.

642 Baker v. Ramey, 27 Tex. 52.

643 Wynn v. Flannegan, 25 Tex. 778. But see, contra, Rutland v. Brister, 53 Miss. 683. Especially if the note was good when delivered, but the maker became insolvent before the end of the suit. Mims v. Railroad Co., 3 Kelly (Ga.) 333.

644 Pinchain v. Collard, 13 Tex. 333.

by taking a third person's note 645 or acceptance, or his note indorsed by the purchaser, and secured by a mortgage on the land.847 So, if he takes the note of a third party for an original purchaser's note secured by such lien.648 And where the vendor takes the note of a third party with the purchaser's indorsement, and transfers it, it has been held to be still secured by the lien. So, if the original vendor takes the note of a subpurchaser, and releases his vendor's lien, it has been held in Texas that the land will still be liable for the amount represented by the purchase money of the later sale.650

649

Vendor's Lien Affected by Other Security.

§ 1575. If the purchaser's bill or note is taken with a good indorser, it will, in general, discharge the vendor's lien,651 unless such presumption is rebutted by withholding the deed.652 And even if the note is mentioned in the deed, with a recital that the purchase money is unpaid, it will not amount to notice of an intention to retain the lien, although evidence may be admitted to prove such intention.653 And where land is paid for by a note of one partner, A., indorsed by the other partner, B., the lien will remain and inure to the benefit of A. as against the interest of B., upon A.'s paying more than his share of the purchase money.65+ So, a vendor's lien is, in general, discharged by taking a note for the price with a

645 Honore v. Bakewell, 6 B. Mon. (Ky.) 67; Kausler v. Ford, 47 Miss. 289; Lord v. Wilcox, 99 Ind. 491; Roper v. Day, 48 Ala. 509. But see, contra, Sears v. Smith, 2 Mich. 243. Notwithstanding fraudulent representations as to the note, Himes v. Langley, 85 Ind. 77; although the note of the original purchaser was surrendered, and the note of a subsequent purchaser taken, Dennis v. Williams, 40 Ala. 633; Muir v. Cross, 10 B. Mon. (Ky.) 277.

640 Even against a bona fide purchaser of the land, Murray v. Gouverneur, 2 Johns. Cas. (N. Y.) 438.

647 Lane v. Collier, 46 Ga. 580.

448 Ellis v. Singletary, 45 Tex. 27.

€49 Knight v. McReynolds, 37 Tex. 204.

650 Perry v. Woodson, 61 Tex. 228; Rawles v. Perkey, 50 Tex. 311.

651 Brown v. Gilman, 4 Wheat. 256; Foster v. Trustees, 3 Ala. 302.

652 Magruder v. Peter, 11 Gill & J. (Md.) 217.

65 Campbell v. Baldwin, 2 Humph. (Tenn.) 248.

54 Tompkins v. Mitchell, 2 Rand. (Va.) 428.