1. — Lien — Notes — Assignment — Priority — Waiver.
The holder of several notes secured by mechanics' lien, indorsing two of them and afterwards for a valuable consideration giving the purchaser a written guaranty of their payment, thereby waived, as to such indorsee, his co-ordinate lien for the notes retained by him, and it became subordinate to that of the notes assigned. (P. 494.)
2. — Same — Ruling Limited.
Whether the mere indorsement of two of a series of notes having coordinate liens for their security gave to the indorsee priority over the lien of the notes retained by the indorser is not decided. (P. 494.)
GAINES, CHIEF JUSTICE.
We are of the opinion that the judgment of the Court of Civil Appeals which awarded Mrs. A.M. Perry a priority of lien is correct, and that therefore the application for the writ of error ought to be refused. We base our opinion, however, upon the ground, that the West End Town Company, while retaining the notes now held by the applicants for the writ of error, guaranteed the payment of the notes assigned by it to Mrs. Perry. We think that guarantee inconsistent with the retention of a co-ordinate lien for the payment of the notes retained by the company and that it had the effect to waive any existing lien in the company's favor upon the same property. It is not necessary for us to decide, in this case, the question whether, when the holder of two or more promissory notes, which are executed at the same time and are secured by a lien upon real estate, assigns one of them and retains the other or others, he thereby gives to the assignee a priority of lien to secure the note so assigned. We do not pass upon that question.
The writ of error is refused
Writ of error refused.