Pease v. Kelly

Vendob’s Lien. — A mortgage is a more certain security than a vendor’s lien, and under our laws, .the tailing of a mortgage for the purchase money, is a waiver of the vendor’s lien. Idem. — A vendor’s lien exists in ease there is no higher security. Idem. — Both the lien of a mortgage and a vendor’s lien cannot exist at the same time.

The complaint in substance alleges that Robert Moore in his lifetime, in 1852, sold and conveyed by deed to Daniel H. Ferguson, a tract of land, and water privilege at the Willamette Falls, for fifty thousand dollars; of which sum forty-five thousand remained unpaid, and a note for that amount was taken by Moore, secured by mortgage on the premises. In 1853, Ferguson sold the premises subject to the mortgage, to the Willamette Falls Transportation Company, who made extensive improvements thereon, and failed; leaving their work subject to the liens of mechanics and material men, in addition to the incumbrance of this mortgage. In 1854, Moore assigned this note and mortgage, by written assignment to O. C. Pratt, to secure the payment of a sum of money, loaned by Prattjto Moore. In 1855, Pratt assigned by written assignment to Leander Holmes, and, at the same time, Moore executed a second assignment of the note and mortgage to Holmes, but, at the same time, and as a part of the same transaction, took back an agreement from' Holmes to pay him (Moore) certain sums of money, and especially $9000, which sums were to be secured to Moore by a new mortgage . on the land in question, so soon as Holmes should get the legal title, and discharge the premises from certain mechanics’ liens, which were pending against the property, amounting to about $9,000.