Hunt v. Waterman

         In respect to the allegations in the complaint relative to the mortgage, we say, that it does not appear therefrom that a mortgage was in fact taken.

         The complaint speaks of it as a " pretended mortgage," which the " defendants claim to be invalid," etc. It virtuallyasserts that the mortgage constituted no lien, and the defendants admit the correctness of the assertion.

         To avoid any question upon the validity of the mortgage, we relied upon the " equitable mortgage," or lien as vendor, held by us; and in so doing, we think we have done no act of which the defendants can complain. Their rights are in no manner changed or impaired. But conceding the validity of the mortgage, did we thereby abandon our vendor's lien?

         This question is passed upon in Boos v. Ewing, 17 Ohio Rep. 500. The facts in that case are very similar to those in this case. The authorities in that case are carefully reviewed, the question elaborately discussed both by Court and Counsel, and to their reasoning and argument we respectfully direct the attention of this Court. The decision in that case is directly in point and in our favor.

         JUDGES: Baldwin, J., delivered the opinion of the Court. Terry, C. J., and Field, J., concurring.

         OPINION

          BALDWIN, Judge

         The question in this case is directly presented, whether, in this State, a vendor's lien exists when a mortgage security is taken for the purchase money. The decisions of the various Courts have been numerous on this branch of jurisprudence, and are not harmonious. The better rule, supported by the weight and number of the authorities, is to hold the silent lien of the vendor extinguished, whenever the vendor manifests an intention to abandon or not to look to it; and it is held that he does this whenever he takes other and independent security upon the same land, or a portion of the same land, or on other land. When he looks to other security he loses this tacit lien. Brown v. Gilman, 4 Wheat. 290; 1 Mason, 212; Fisk v. Howland, 1 Paige Ch. R. 20, where the authorities, English and American, are fully reviewed.

         The editor of Leading Cases in Equity, reviewing the case of Macreth v. Simmons, (15 Vesey, 350) cites and reviews a very great number of cases which decide and discuss the general doctrine, and this particular point. The case of Boos v. Ewing, (17 Ohio, 521) cited by respondent, seems to be the other way, and is noticed by the editor as a case opposed to the general current of decision.

         The fact, if we regard the averment of the bill as properly stating it, that the mortgage was defective in itself, or its acknowledgment, does not help the plaintiff. For, as we have seen, the question is as to the intention of the vendor, which is as well shown by an informal act as one regularly done. If the mortgage was properly executed, it may be enforced, of course; but the whole case seems to rest here on the validity of the vendor's lien. It is not stated how, or in what, the mortgage was defective, and this general and loose averment is not sufficient to withdraw the case from the influence of the general rule we have announced.

         That the case may be fairly tried upon its merits, in view of the law as we have held it to be, the decree is reversed, and the cause remanded for further proceedings on another trial.