The main point involved in this case raises the question as to what facts constitute a waiver of a vendor’s lien.
Crowder and Newman sold certain real estate in the city of Huntsville to Mary C. Struve, one of the appellees, executing therefor a bond for title. The consideration on the part of the vendee was the payment of an incumbrance already existing on the land, in the form of a mortgage in favor of one Jaue Hamilton Childs, for nearly $1,600, and two notes executed by J. I. Donegan, payable to her, the said vendee, who duly transferred them by assignment to appellant’s testatrix. The transfer was made in writing, being signed by the payee and her husband, and attested by two subscribing witnesses. That of the larger note, which was for the sum of $3,183.20, and secured by a mortgage on certain other real estate than that above mentioned, reads as follows:
“Huntsville, Ala. Aug. 8th, 1876.
“ Inpartpayment for a house and lot in Huntsville [describing it], purchased by me this day of John M. Crowder and William P. Newman, I, Mary C. Struve, do hereby transfer *172and assign them this note, to the full amount thereof, principal and interest, together with the security for its payment, evidenced by mortgage of record in the Probate Court of Madison county, Alabama, in Deed Book No. 1, page 256.” [Signed] “Mary C. Struve,” and “William F. Struve, husband of Mary C. Struve.” This was attested by two subscribing witnesses.
Soon after this, on the 15th day of September, 1876, Crowder and Newman executed a deed conveying this property to Mary C. Struve. The deed recites, as a consideration, the .transfer and assignment of the two Donegan notes, and the agreement of Mrs. Struve to pay off and discharge the mortgage debt due Mrs. Childs. The only question presented is, whether the Donegan note, above described, for $3,183.20, and now in the hands of appellant, is a lien on the land conveyed to Mrs. Struve, or has the vendor’s lien been waived.
It is noticeable that the payee of this note, being a married woman, incurred no personal liability by her written transfer of it. This assignment, attested by two subscribing witnesses, operated only to transfer the title and property in the note to the assignee, under the provisions of section 2707 of the Code of 1876, which prescribes the manner in which the separate ■estate of a married woman may be sold and conveyed. This fact may be significant, in legally ascertaining the probable intention of the contracting parties.
The deed of conveyance 'to Mrs Struve, and her written transfer of the Donegan note to her vendors, Crowder and Newman, are to be construed together as one entire transaction; and when so taken, they constitute the contract of the parties. Robins v. Webb, at the last term.’
Parol evidence was introduced by both parties, for the purpose of proving their intentions in relation to the alleged waiver of the vendor’s lien. The entire contract being in writing, it may be seriously questioned whether such verbal declarations of intention, made contemporaneous with, or antecedent to the execution of the written instruments, are admissible in evidence for such a purpose. This question, however, is not necessarily involved in the decision of this case, and we prefer, therefore, to leave it undecided, and open for future consideration.
It is enough to say, that the evidence bearing on this subject is conflicting, and, perhaps, is reconcilable only on one theory; and that is, that neither' party intended to make any express agreement different from that implied by law. The minds of the contracting parties are not satisfactorily proved to have verbally concurred in any agreement, or proposition, variant from, or. conflicting with, that imported by the written instruments introduced in evidence. Without such mutual assent, *173there can be no express contract»; and in the absence of such contract, the implication raised by law must be left to operate.
What constitutes such a waiver, has been much discussed both in1 England and in this country, with some want of harmony among the adjudged cases. It is, however, well settled, that the taking of the vendor’s note or bond for the purchase-money, as a mere evidence of the debt, or its renewal, is no-waiver. But the lien maybe waived, by the express agreement of parties, or by taki/ng collateral security. It can not be doubted, presumptively, that the lien is abandoned, where a vendor, who has conveyed the title, accepts a distinct and separate security for the purchase-money; as, for example, a mortgage on other property, or a bond or note with surety or indorser, or a deposit of stock or personal property. And there is just as little doubt, on authority, that the lien is, prima facie, waived by taking the notes of a third party for the purchase-money. And this presumption is, of course, rendered stronger where such note is itself secured by mortgage.—2 Wash. Real Prop. 3d ed. pp. 90—91. [507—8]; 1 Lead. Cases Eq. (H. & W.) pp. 364-5; Lagow v. Badolet, 12 Amer. Dec. p. 263, note] 1 Jones on Mortg. § 206, and note 5; Walker v. Carroll, 65 Ala. 61; Foster v. Atheneum, 3 Ala.. 302; 4 Wait’s Act. & Def. 323, and cases cited.
The note of Donegan was secured by mortgage on other property. It is recited in the written transfer indorsed on it to be taken “in part payment” of the debt for the purchase-money. The payee, Mrs. Struve, was not liable personally on the assignment, and must be taken to have intended it as a transfer of title or property in the note merely; a presumption which is strengthened by the fact, that the transfer was attested by two witnesses, as required to convey the separate estate of married women under the statute.
We think that the acceptance of this security was an abandonment of the vendor’s lien presumptively; and there being no legal evidence sufficient to overcome such presumption, it mnst be taken in this case as conclusive. The chancellor so held, and his decree is affirmed.