[Syllabus Material]          Appeal from the Eleventh District, County of El Dorado.

         This was a bill filed in the Court below, for the enforcement of a vendor's lien to a quartz lode.

         The facts as disclosed by the opinion of the Court, are as follows:

         In this case the plaintiff seeks to enforce a vendor's lien for the purchase money of a certain quartz vein sold by the plaintiff to the defendant, and charges that the other defendants are purchasers of the property from Waterman, with notice of this indebtedness. The bill shows that the plaintiff took a mortgage on this property for the payment of this purchase money, but avers that by reason of some defect in the deed or acknowledgment, it is not available as a security for the plaintiff's debt. It is not very clear whether the plaintiff meant to rest his claim for relief on the mortgage or on the vendor's lien, or on both. But, from the bill, demurrer and decree, we take it that he abandoned the notion of the validity of the mortgage, and relies on the vendor's lien.

         The decree is for the enforcement of the parol or tacit lien. Defendants appealed to this Court.

         COUNSEL:

         First. It appears from the complaint, that at the time of the sale to Waterman, plaintiff took from him a mortgage to secure all the unpaid purchase money. That the taking of said mortgage was a waiver of a vendor's lien. That if no vendor's lien existed, he has shown no cause of action against the defendants appearing in this suit.

         Second. That the vendor's lien was equally waived in this case, whether the mortgage was properly acknowledged or not, as the taking and recording the mortgage showed an intention to rely upon the mortgage, and not upon the vendor's lien.

         In regard to the first point, the American rule as to what will be regarded as a waiver of a vendor's lien, is very clearly and fully laid down, as follows: " A lien will be considered as waived whenever any distinct and independent security is taken, whether by mortgage of other lands, or pledge of goods, or personal responsibility of a third person, and also when a security is taken upon the land either for the whole or a part of the unpaid purchase money, unless there is an express agreement that the implied lien shall be retained." Vide Leading Cases in Equity, vol. 1, pages 272, 273; 4 Kent, 151 to 153, 3d ed.; Fish v. Howland, 1 Paige, 20 to 30; Cole v. Scott, 2 Wash. 141; Gilman v. Brown, 1 Mason, 192, 221; Little v. Brown, 2 Leigh's Rep. 383; Conover v. Warren, 1 Gilman, 498; Wilson et al. v. Graham et al. , 5 Munf. 297.

         It appears from the complaint in this case, that a mortgage for the unpaid purchase money was taken by plaintiff, and by him caused to be recorded, which was a waiver of the vendor's lien, and notice to subsequent purchasers of such waiver; and that plaintiff relied upon the mortgage, also of the time of payment of the money.

         An unacknowledged or recorded mortgage is a higher security than a vendor's lien. (Vide Leading Cases in Equity, vol. 1, page 280; Gilman v. Brown et al., 1 Mason, 192, 221.) Neither are good as to subsequent purchasers without notice; both are good between the parties. But the unacknowledged mortgage is the higher security, being a lien by express contract, while the other " is a right which has no existence until it is established by the decree of a Court in the particular case." Gilman v. Brown, 1 Mason, 192.

         " There being a higher security, the taking of it will be a merger, waiver, or extinguishment of the lower security upon the same property, expressum facit cessare tacitum ." Little v. Brown, 2 Leigh, 283.

         " When, by the express agreement of the parties, there is a lien upon the estate for a part of the consideration of the conveyance, it excludes the idea of an implied lien for the residue." Fish v. Howland, 1 Paige, 31.

         Again, any conduct which shows an intention on the part of the vendor to give up the lien, will be a bar to its prosecution. Leading Cases in Equity, vol. 1, page 273; Fowle v. Rust's Heirs, 2 Marshall, 294; Clark v. Hunt, 3 J. J. Marshall, 553.

         In this case there can be no question about the intention of the vendor to secure his debt by mortgage, which if it had done, would have been a waiver of the vendor's lien. He expressly alleges in his complaint, that he took the notes and mortgage therein mentioned to secure the purchase money unpaid; that he filed the same with the County Recorder, and procured the same to be recorded. An intention then to rely upon the mortgage was, at the time of the execution thereof, a waiver of the vendor's lien.

         If the vendor shall have since found that his mortgage was not executed in accordance with the provisions of the registry laws of this State, still, having once relied upon it, and thus waived his lien, he cannot now go back and restore the lien. The lien once waived is gone forever. When the party has by his own act shown his intention to abandon one security for a better, he cannot afterwards ask a Court of Equity to repair his errors, and restore him to rights which he has lost by his own acts. No man can take advantage of his own wrong, carelessness or negligence, nor will a Court of Equity interfere to relieve him from the just consequences of the same. If there was any defect in the acknowledgment or execution of the mortgage, which would prevent it from being considered notice to third persons, the vendor should not have taken it. It was his duty to see that it was properly executed. That some kind of acknowledgment was added to the instrument is certain, because otherwise it could not have gone to record.