This is an action brought by W. B. Wasson against John M. Davis, on a promissory note calling for $1964 50, currency, with ten per cent, interest from date, and expressly stating that it is for the like amount of a note held by Wasson against A. M. Williams, and credited on a note held by Williams against Davis.
Wasson undoubtedly held the vendor’s lien to secure the deferred payments on the land sold to Williams.
But it appears that all the deferred payments, except the last, were met; and it would seem from the evidence that the last note was made to include a sum of money which is not ascertained by anything appearing in the record, but which was due from Williams to Wasson ; and this note was given by Wason for his individual note to Davis.
The only question for our decision is, did the vendor’s lien attach in favor of Wasson to secure the note sued on? .
This lien could not have been enforced by Wasson against Williams to secure that portion of the note which was given for cattle and provisions. But the whole of the Williams note was surrendered to Davis, in consideration of the note sued on, which note was evidently taken by Wasson as a preferable security for his debt.
It is a well settled principle of equity, that he who having a *167vendor’s lien takes any other security than that which equity gives him upon the land sold, is held thereby to waive the vendor’s lien. (See Long on Vendors, Volume 3, 123; Boss v. Eding and others, 17 Ohio R., 500.) The vendor has a lien upon the land sold only so long as he shows no purpose to release the land and take other security. But any act of the vendor which shows an intention to release the land will divest the lien. The taking of a mortgage over the land to secure purchase money does not divest the lien, but must be regarded as evidence of an intention to rely upon it, and render it notorious by record. The question is not whether the vendor relies upon his lien, but whether he relies upon the particular estate sold, for his security. If he intends to rely on the estate, the' law gives him the equitable lien, and it would not be fair to divest the lien, if he shows only a purpose to strengthen it and not to abandon it. Courts look to the facts of the lien, not to the form; equity pursues the substance, not the shadow, and will not disregard the essence of things to insist on forms.
The English courts of equity have laid down the true rule. Did the vendor intend to trust to the estate as his security, or did he intend to abandon that and rely on something else ? If he relied on the estate he retains his lien; if he did not, but took other security on other property, or from some other person, he has lost it. (See 16 Vesey, 348, 350.)
The evidence in this case makes Davis a bona Jide purchaser from Williams, without notice of the secret trust; and, indeed, the conduct of Wasson was such as to have misled Davis at the time he purchased from Williams, if, indeed, he had ever intended to set up a vendor’s lien upon the land in the hands of Davis.
But it is claimed that there is that privity of contract between Wasson, Williams and Davis, which ought to keep alive the vendor’s lien. We think this cannot be maintained.
The vendor’s lien could only secure the purchase money, and *168Wasson could not have had a decree against the land for that portion of that note which was given for cattle and provisions. (See Hilliard on Mortgages, Vol. 1, 696; 10 B. Mon., 383.) In this case the notes were given for land and merchandise, and the court refused to enforce the lien, it not being shown how much was for land and how much for merchandise. It is argued by the appellant that it was incumbent upon Davis to show that Wasson had waived his vendor’s lien, and various authorities are cited. This would doubtless be the case in an action between vendor and vendee, or in any action brought directly to recover the purchase money.
But this is an action brought by Wasson against Davis, on his individual promissory note, which shows upon its very face that it was given in novation of another note. A new debt was substituted for an old one; the old debt was extinguished, and with it the vendor’s lien. (See Bouvier's Law Dictionary, title Novation.)
Here was the intervention of a new debtor. Davis became debtor to Wasson instead of Williams; Davis was the expromissor. The whole transaction was that known to the civil law as ex promissio. We can find no fault with the judgment of the district court, and the same is therefore affirmed.
Affirmed.