^rSek; Vex-agreementrtoalrétrance.inoum"

This case was here before, (57 Mo. 189) when we took occasion to declare our views in respect vendor’s liens. When the case was re-Branded, the defendant, John Clark, having died, and Eaton failing to answer, Mrs. Clark answered, putting in issue the allegations of the petition and setting up certain matters of defense which will be hereafter adverted to. On the hearing, the result was adverse to the plaintiff’, and he comes here by writ of error. The case before us, had its origin as will be seen by the volume referred to, in an exchange of certain real estate known as Pratt’s Mill, owned by plaintiff’, for in-lot No. 110, in the City of Jefferson, owned by Mrs. Clark as her separate estate. The substance of the agreement was, that Mrs. Clark was to convey the above mentioned lot in part payment for the mill tract, which was to be conveyed by Pratt to Mrs. Clark and Eaton, and Mrs. Clark was, upon the exchange of titles, to remove an incumbrance, then exist [*161] ing on the city property for $1,000. On the exchange of deeds this contract was not complied with, and after vain efforts to have it done, plaintiff was forced himself to satisfy the incumbrance, and therefore brings this suit for specific performance of the agreement, and to have a vendor’s lien declared against the mill tract property, to the extent of the incumbrance he was thus compelled to rer move.

2. vendok’s lien : waiver of.

We pass as unworthy extended comment one of the defenses that Mrs. Clark had conveyed anterior to the institution of the suit, the real estate now sought to be charged to one Luther B. Hickolc and he to one Linsenbarth, as there is not a particle of evidence offered in support of that allegation, nor of the one that Hickok was a purchaser without notice. So that the only question of any practical importance is whether there has been a waiver of the vendor’s lien on the mill tract by Pratt in accepting the bond given to him by Clark and Eaton. This bond was conditioned that the obligors therein should pay off’ the incumbrance on in-lot 110, and to save Pratt harmless. "We do not regard this bond in the light of a collateral or independent security, whose acceptance would be held as tantamount to a waiver of Pratt’s lien on the tract which he exchanged for- the city property; for the reasons that Eaton was one of the vendees, and, therefore, could not be regarded as a third person ; and as to Clark, although his notorious insolvency would not perhaps affect the question, yet he was already bound by his covenants contained in the deed from himself and wife to Pratt, and expressed in the words “ grant, bargain ancl sell,” and his bond could do no more. But conceding that this view is not wholly free from question, still the acceptance of the bond cannot, under our,, decisions, be held as conclusive evidence of the waiver which it is claimed had occurred. (Durette v. Briggs, 47 Mo. 356. In Sullivan v. Ferguson, (40 Mo. 79) where a guaranty very similar to the bond above mentioned, was given by a third [*162] person, doubt was expressed as to its sufficiency to abro - gate tbe lien, and so the case was not put alone on that ground. If the delivery of even an independent personal security is not conclusive, then evidence of intention is admissible ; and it would seem the duty of the vendor who desires to resist the inference to be drawn from the acceptance of such independent security, to introduce competent testimony to the effect that he did not design to relinquish his lien. (Durette v. Briggs, supra) In the case at bar, the lien had already existed for months before the bond was given, showing that there was no intention at least, at the outset, to waive the lien. All the cases cited from the books, show a waiver before the lien had ever attached. But Pratt’s intention not to accept the bond as a bar of his •vendor’s lien, is conspicuously shown by the prominent fact that after the bond was given, he continuously demanded of Clark who, down to the time of his death was his wife’s agent, to perform the contract and remove the incumbrance, as he and his wife had agreed. And that the wife so agreed, is admitted both in her answer and in her testimony, and that Clark himself, long after the bond was given, still viewed the obligation to remove the incumbrance on the <city property as subsisting, is shown by his repeated declarations to that effect. Taking all these circumstances into consideration, as well as others of a kindred nature, which the record discloses, all pointing to the facts that the lien was created on the mill tract, and that it was never waived, and that the removal of the incumbrance on the city property and the interchange of deeds were to be concurrent acts, we feel no hesitancy in. holding that it would be against equity and good conscience to permit Mrs. Clark to hold the mill tract discharged of the lien or implied trust, which attached at once thereto by implication, when the deeds were delivered. We shall in consequence of these views reverse the judgment of the court below, and will direct that court in conformity hereto, to enter a decree in this cause, declaring that a ven [*163] dor’s lien exists on the mill tract, equal in amount to that which Pratt was compelled to pay, together with accrued interest, for the removal of the incumbrance on the city property, and that the property on which such lien is declared to exist, be sold for the enforcement thereof. •Judgment reversed and cause remanded.

Reversed.

Motion for Rehearing.

i. husband; wipe’s tory covenants, 2 vexdok’s lien waiver of.

We are thoroughly conversant with the facts of this case. We did not overlook the material fact that Mrs. Clark possessed a separate estate in the in-lot

110 in the city of Jefferson. And it is difficult to see how counsel could read the opinion and fail to observe what is expressly stated therein. It was at the option of Mr. Clark, whether he joined in the covenant contained in the words “ grant,” “ bargain ” and “sell.” Having made such a covenant, he is as much bound thereby, as if the owner in fee. If this were not so, the result would be simply this: that in every case where the separate property of the wife in lands is sold, the statutory covenants in such deed would be, as covenants, wholly worthless. Worthless, as to the wife, because the statute (§ 2, p. 273) explicitly provides that “ no covenant, express or implied in such deed, shall bind the wife or her heirs except so far as may be necessary effectually to convey from her and her heirs all her right, title and interest expressed to be conveyed therein.” Worthless as to the husband, because he (as counsel assume) is not, under the provisions of the statute, (§ 8, p. 274) a “grantor.” In other words, that you may obtain as many implied covenants from a husband as you please, but when you get them, they are, in all instances where they occur in conveyances made by husband and wife, of the separate estate of the latter, of not the slightest value! The bare statement of such a proposition, is its oton ample refutation. But even were this point ruled in the manner claimed by counsel, it would neither gainsay nor affect the conclusion reached. Eor, as the opinion shows, the taking of independent security is not conclusiue evidence of the waiver of the vendor’s lien; that in consequence of this, it was competent to show the intent of the parties to the transaction. This [*166] evidence was furnished by the declarations of Clark, who continued down to the time of his death to be his wife’s agent; declarations made whenever Pratt called on him to have the agreement performed for the removal of the incumbrance; declarations wholly inconsistent with the idea that the bond was received as a manifestation of a waiver of the lien. In relation to the effect of the “suggestion” of the property having been conveyed to purchasers without njtice, we certainly shall pay no attention to matters respecting which, not the least evidence was furnished in the lower court. If, indeed, there are other parties interested, purchasers without notice, their rights are not in the smallest degree damnified by the decree ordered to be entered. The motion for rehearing is therefore overruled.

Overruled.