Boies v. Gardner , 60 N.Y. Sup. Ct. 236 ( 1889 )

Landon, J.

The-burden rested upon the defendant Benham to show that

the plaintiff, as vendor of the premises and the holder of a mortgage of equal date and record with her own, did, either by act or omission, so far waive the priority which his vendor’s lien gave him for the purchase money as to admit the defendant’s mortgage to an equality of lien with his own. The vendor’s lien for the purchase money is prior to any other lien which the vendee can give upon the land except by the vendor’s consent, expressly given, or implied from his acts or omissions. Dusenbury v. Hulbert, 59 N. Y. 541; Ellis v. Horrman, 90 N. Y. 466; French v. Le Roy, 15 Wkly. Dig. 269. The vendor’s equitable lien is waived by taking a mortgage.. Fish v. Howland, 1 Paige, 20. The referee has found that the plaintiff did not part with his equitable lien. Upon examination of the evidence we think the defendant did not quite make it appear that the plaintiff consented to admit her mortgage to an equality of lien with his own, and hence did not maintain the burden she assumed. The case of French v. Le Roy, above cited, was fully as strong for the defendant as is the present, but the equitable lien prevailed. The defendant urges that because the referee has found that the mortgage to her was also given for the purchase money, it is thus admitted to an equality with plaintiff’s mortgage in that respect, and because it stands equal in date and record all the requisites of equality are shown. The money for which the mortgage was given to Benham was purchase money to the amount of $900, as between Benham and the purchaser, in the sense that the purchaser could not by agreement with third persons give to them alien upon the land prior toBenham’s. Benham’s equity is in like manner and for like reasons as superior to that which the purchaser can give to third persons as the plaintiff’s equity is superior to hers. The land comes from the plaintiff. Until the purchase price is secured to him his grantee has nothing to mortgage to Benham. That security given, then the grantee can mortgage to Benham, subject to plaintiff’s prior lien. Benham, having advanced part of the purchase price, is equitably entitled to whatever security the land can afford him, before the judgment liens, dower right, or mortgages of third persons, who have advanced nothing towards vesting the legal title to the land in the grantee, can be allowed. This is the extent to which the money lent by Benbain and paid to the plaintiff becomes purchase money. Jackson v. Austin, 15 Johns. 477; Cunningham v. Knight, 1 Barb. 399; Kittle v. Van Dyck, 1 Sandf. Ch. 76. The judgment is affirmed, with costs.