ON REHEARING.
A rehearing was ordered in this case upon the petition of defendants and intervener, and an argument has been presented, two points in which require discussion. We notice, first, the point that, conceding that defendant Lewis E. Booker was the real purchaser, yet plaintiff waived his vendor’s lien. This claim is based upon the proposition stated in the original opinion that Mr. Booker refused to mortgage the land, and stated to Mr. Bray, during the negotiations, that he desired to turn the property over to Mrs. Booker free of all incumbrances. We used that language because we desired *360to give the defendants the benefit of all that they could claim from then* testimony. Mr. Booker stated in his evidence that .during the negotiations, and when he refused to give a mortgage to secure the note for $5,000, he gave, as one of his reasons therefor, that he desired to turn the property over to Mrs. Booker free from incumbrances. - Regarding this statement as necessary, in connection with Bray’s subsequent execution of the deed, to constitute a waiver of a vendor’s lien, and the burden being upon defendants to establish such waiver, the statement does not stand proven, as will appear by the testimony that we shall quote upon the next point. But, regarding the statement as proven, learned counsel insist that where, to the knowledge of the grantor, real property is purchased for the purpose of transferring it to a third party, free and clear of incumbrances, by giving a deed under such circumstances the original grantor waives his right to insist upon a véndor’s lien. Counsel cite, in support of this position, Sullivan v. Ferguson, 40 Mo. 79; Christy v. McKee, 94 Mo. 241, 6 S. W. Rep. 656; and Railway Co. v. Stewart, 51 Ark. 285, 10 S. W. Rep. 767. Counsel mistake these authorities. In each case the Court was discussing the old mooted question (happily settled by statute in this state) whether or not taking the obligation of a third party was a waiver of the lien, and it was held that, where property was purchased in the manner and for the purpose stated by counsel in this case, taking the obligation of a third party was a waiver of the lien. Counsel also cite two Alabama cases, — Hubbard v. Buck, 98 Ala. 440, 13 So. Rep. 364, and Scheerer v. Agee, 106 Ala. 139, 17 So. Rep. 610. These authorities would, to some extent, support the position of counsel, if it were true here, as it is in Alabama, and in all jurisdictions where the matter is not fixed by statute, that a vendor’s lien is a mere creation of equity, given by reason of the injustice of permitting one to enjoy property without paying therefor, and never allowed where the facts surrounding the transfer malee it clear that the vendor does not intend to rely upon a vendor’s lien. The taking of other security was such persuasive evidence that the vendor did not intend to rely upon his lien that, after much hesitation by the courts, the rule finally became nearly generally established, in the absence of statutes, that taking other security, if only the personal obligation of a responsible party, was a clear manifestation of an intent not to rely upon a- vendor’s lien. No doubt courts might regard other facts as manifesting the same intent, and where a vendee purchased for a certain declared object, which would be entirely subverted by the enforcement of a lien, it might not be inconsistent for a court to declare that the vendor did not intend to rely upon a lien.
But 'the cases that discuss the existence or nonexistence of a vendor’s lien from the standpoint of the vendor’s intentions have no application in this state. Here it is a question of the existence or nonexistence of the conditions prescribed by the statute. If those conditions exist, — and confessedly, for the 'purpose of this point in *361this case, they clo exist, — then the lien exists every time, and the law knows np implied provisos. Had the legislature intended that the vendor should have a lien for unpaid and unsecured purchase price in all cases unless the vendee, to the vendor’s knowledge, desired to transfer the property to a third party free from incumbrances che statute would have so declared. But there is no such limitation. The statutory right is absolute, and no court can ingraft implied limitations without throwing us back upon the old equity doctrine of intention. Of course, since the lien is for the benefit of the vendor, he may, as we said in the original opinion, waive the same. But such waiver must be by unmistakable words or acts. The law cannot imply it without destroying itself. And certainly the act of giving the deed — the very act which perfects the right to the lien— cannot be regarded as an express waiver of the lien. It is suggested that where the vendee refuses to give a mortgage, and states that he desires to transfer the property free from incumbrances, if then the vendor is permitted to enforce a lien upon the property it works a fraud upon the vendee. But this is not correct. There can be no legal fraud. If the purchase price be not paid or secured, the statute creates the lien. It exists as certainly as if the grantee had executed a mortgage. This he is bound to know. The grantor may or may not rely upon or enforce it, but it exists. If the grantee wishes to avoid it, he must secure an unmistakable waiver.
But learned counsel rely more ’ especially upon another point. In the original argument, it was claimed that Mrs. Booker occupied the position of an innocent purchaser for value, and that no lien could be enforced as against her. We held, however, that, in making the purchase, Mr. Booker, with the knowledge and consent of his wife, acted as her agent, and that she was chargeable with knowledge of the fact that the purchase money had not been paid. Counsel now say that, this is correct, and that, since Mr. Booker was the agent and Mrs. Booker was the principal, she, and not he, was the “buyer,” within the terms of the statute, and, as plaintiff accepted Mr. Booker’s obligations for the payment of the purchase price, that he accepted security “other than the personal obligation of the buyer,” and hence, under the statute, as well as under the general current of authority in the absence of statute, no vendor’s lien could exist. This contention certainly has the merit of great plausibility, but it is unsound, under the facts of this case. In the' original opinion, we were fixing the relations between Mr. and Mrs. Booker. It was there contended — and it was the only ground upon which a claim that she was an innocent purchaser could be based — -that in effect, under the facts, she was a purchaser from Mr. Booker; that he purchased from plaintiff, and she purchased from him. We held, under the clear language of her testimony, that she did not occupy the position of a purchaser from her husband, but as to her he acted as an agent in the purchase of the property. But whether, as between plaintiff and Booker, the latter acted, or *362claimed to act, as agent for his wife, or was so regarded or treated by either party, is an entirely different question. This transaction must be viewed as the parties viewed it when it was made. Counsel, in their petition for a rehearing, very properly say: “If this were a case where the husband were the real purchaser, and merely had the title put in his wife’s name for convenience, then, accepting his note would not be accepting the note of a third person, for in the supposed 'case he would be the buyer.” We think this concession is fatal 'to counsel’s position. We notice, first, that there is absolutely nothing in the evidence tending to show that plaintiff knew that Mr. Booker was under any obligations, contractual or moral, to purchase the property for his wife, or that he knew that Mr. Booker wa^ in any manner indebted to his wife, or had in his possession any money or property belonging to his wife. Mr. Booker at no time stated or intimated that his wife was purchasing the realty through him as her agent. At no time did he pretend to bind her or create any liability upon her part. Granting —what is not proved — that he said, during the negotiations, that he wished “to turn the property over to his wife free from incumbrances,” that language did not imply that he contemplated an actual sale or transfer to his wife for a valuable consideration moving from her. Rather, it implied that, as a business man, he did not wish to have his home constantly exposed to the risk of business fluctuations, and he therefore proposed to get it free from incumbrances, and place the title in the name of his wife. Certainly, the plaintiff was warranted in so understanding it. But the testimony of the parties leaves no doubt as to who was the real buyer. Mr. Booker testified: “I am one of the defendants in this action. I negotiated a deal with Mr. Bray, the plaintiff, in September, 1895, by which I took the house and certain bank stock belonging to him, and executed the note (Exhibit B) at that time. I think I purchased eighty-three shares of, bank stock from Mr. Bray at that time. It was eighty-two or eigh'ty-three shares of the Grand Forks National Bank stock. The contract between myself and Mr. Bray, on the 30th of September, 1895, by which this house and bank stock was transferred to me, was: I took the bank stock and six hundred dollars’ worth of furniture (the furniture was taken at fifty cents on the invoice price; the invoice was twelve hundred dollars, and at fifty cents, made it six hundred dollars) as part of this consideration. Then I was to take his bank stock and his house, and pay him five thousand dollars, and assume a note he had given to the Security Trust Company and his obligations at the Grand Forks National Bank as consideration. That was the contract.” It is not claimed that the furniture and hank stock were not purchased by Mr. Booker; yet it was all in one contract, and he reiterates that he took the house, and that it was transferred to him. Touching the same point, the plaintiff testified as follows: “The talk was I was to make the deal if I could negotiate the note. Fie knew I was trying to negotiate the note. I don’t think there was talk at *363that time about the circumstance of the deed being made to Mrs. Booker, nor until after the deal was all closed, and I started to make out the deed, 1 asked him how he wanted the deed made, and he said to her. His wife was never mentioned, — never talked of her until after the transaction had been all completed.” Viewed from the standpoint of the vendor, if this were not a case where the real buyer had the title made to another person for his own convenience, then it is impossible to conceive of such a case. Nor do we think the vendor’s rights can be destroyed because of the existence of certain facts, hidden away from him, which made it obligatory upon Mr. Booker to purchase that home for his wife. We may add that it does not appear in this case that any obligation of Mr. Booker to his wife has ever been satisfied, in whole or in part, by reason of the transfer of the title to her. So far as we know, that obligation is in full force.
It is true, we think, that the principle announced in Andrus v. Coleman, 82 Ill. 26, would defeat the lien in this case. In that case the Court seems to recognize the doctrine that, where the vendor makes the deed to the wife, that fact alone is conclusive upon him that 'the wife was the real purchaser, and that her husband simply acted as her agent in the transaction. If this be true, 'then it must follow that a purchaser never could have the title placed in a third paidy for his own convenience, because the deed to such third party would be conclusive against the vendor that such third party was the real purchaser, and the party who carried forward the negotiations, and became responsible for the purchase price, was only the agent for the third party. But, if counsel in this case are correct in their concession, then the law must be different, and we think counsel are correct. The Supreme Court of Mississippi had this question under discussion in Davis v. Pearson, 44 Miss. 508. In that jurisdiction the lien is not given by statute, and the court recognized the general rule that taking the obligation of a third party was conclusive evidence of a waiver of the lien. But the particular point- was whether or not the lien was waived when the husband negotiated the purchase and gave his obligations for the purchase price, but had the title conveyed to his wife. The Court said: “We think the principle deducible from the cases is that if the husband negotiates a purchase of land, and gives his written promise to pay the price, but has the title made to the wife, that the lien will be implied.” If, with those 'conditions existing, the lien will be implied where it is not given by statute, certainly the existence of the same conditions will not destroy the lien where it is given by statute, while the same rule relative to taking security exists in both cases. The case of Duke v. Balme, 16 Minn. 306 (Gil. 270), has many points in common with this case. There the wife had placed a certain sum of money belonging to her separate estate in her husband’s hands. The conditions were .much the same as here. The husband might use the money as his own, but must ultimately account to his wife for it, or transfer to her *364any land he might purchase with it. He used a portion of it to purchase three certain land warrants. Subsequently he purchased from the plaintiff a tract of land, and gave in payment therefor the three land warrants, with an express warranty of title thereto in himself. He then transferred the land to his wife at her request, and at an agreed price, in part satisfaction for the money advanced to him by her. It transpired that the husband acquired no title to 'the land warrants by reason of the fact that a prior assignment thereof had been forged. Of course, he transferred no title to plaintiff. Plaintiff held his express warranty of title, but he elected to treat the purchase price of the land as unpaid, and brought the action to enforce a vendor’s lien thereon against both husband and wife. The Court sustained the action, and, in answer to the claim that the wife was an innocent purchaser, held that the husband was the agent for the wife in making the purchase. The facts in that case certainly made a much stronger case against the enforcement of the lien than has been made in the case at bar. We adhere to our original opinion.
(79 N. W. Rep. 293.)