(dissenting). I find no evidence in the record from which it can be inferred that Wallace, Delmer, and Cagley purchased the land from Russell. There is no contract in writing between these parties, and there is no oral evidence connecting *259Delmer or Cagley with any contract of purchase. The oral evidence shows only a conversation between Russell and Wallace in regard to the matter, at which J. E. Morris, an examiner in charge of the ibank, was present. Russell testified as follows in regard! to this conversation:
“Mr. Danforth (Wallace) told me that this transaction .was 'being handled for the Raymond State Bank. I insisted upon these notes being signed by Mr. 'Cagley, W. M. Danforth, and Delmer Danforth for my protection. It was at my request that these notes were signed. I wanted to get all the signatures that, I could on it. I asked Mr. Danforth what security they could give me, and he said them three men would sign those notes through the bank, as agents of the bank. He told me they were acting as agents for the bank and that they would sign the notes. * * * I wanted him to give me a first mortgage and he said they could not do it; he would have to have a mortgage to get this $6,000. * * * I understood he was going to mortgage the land on the outside and I was to get the $6,000. I agreed to take a note for the balance that was to be taken. He told me he was negotiating this deal for the bank. I understood he was dealing for the bank. I thought Raymond State Bank was all right as long as it was doing business there. I asked Danforth if the bank would pay me the. balance of $7,000; he said the bank would pay. When he told me the bank would pay it, I told him. I thought the bank was all right. * * * Then I took these notes, and they were signed by W. M. Danforth and Delmer Danforth and Mr. Cagley. I would not have closed the deal without getting these notes.”
Neither Delmer Danforth nor Cagley was present at this conversation, and there is no. evidence at all that they ever authorized Wallace Danforth to make any purchase on their behalf, or that they were in any manner to be considered the purchasers of the land. The title was taken in Delmer Danforth’s name only for convenience, and, so far from considering himself a purchaser of the land, Delmer objected for a while to having the deed taken in his name, but finally consented, because they told' him that the bank could not take the deed, and then apply for the $6,000 it wanted to get on the land. Cagley knew nothing about the transaction, except that they called him in and asked him to sign the notes, and he simply signed where they told him to. Neither he nor Delmer had *260any personal connection with the transaction, and neither ever claimed any interest in the land.
Russell does not claim that he ever supposed he had soldi the land to Wallace, Delmer, and Cagley, or that they had purchased it. It was explained to him why it. was desired to have the deeds for the land run to Delmer as grantee, and he deeded the land with the understanding that it was done for the bank, and that he was taking the notes of W. M. Danforth, Delmer Danforth, and Cagley as security for the purchase price. He thereby waived his right to a vendor’s lien. A vendor of real estate may, if he sees fit, take the notes of third parties for the whole of the purchase price, and not look to the vendee at all for any part of it, and when he does so he waives his vendor’s lien. “Where the vendor takes the notes or other obligations of third persons for the purchase money, he waives his vendor’s lien.” 39 Cyc. 1836.
As to the $6,000 that was procured through the mortgage placed on the land, the undisputed testimony is that Russell agreed' that Danforth was to get a loan for that amount on the land, and that the money should be paid in to the bank for him, and be paid to him as he needed it. This $6,000 was paid in to the bank for Russell, and whether it was credited to his account on the books of the bank or not, when the bank received it with this understanding, it was equivalent to deposit of. $6,000 made to Russell, and his leaving the money or any part of it in the bank simply constituted him a common creditor of the bank, so far as this $6,000 was concerned. In no view of the evidence is Russell entitled to a vendor’s lien for this $6,000, and I think the evidence is quite conclusive that he took the notes of Wallace, Delmer, and Cagley as security for the obligation of the bank to pay the purchase price for the land, and thereby waived his vendor’s lien as to the entire purchase price.
CAMPBELL, J., concurs in the foregoing dissent.