Smith & Vaile Co. v. Butts

16 So. 242, 72 Miss. 269

Opinion

Cooper, C. J.,

delivered the opinion of the court.

The weight of authority seems to be, and probably the better view is, that, where a lien is given by law, but the person entitled thereto, in making his contracts, takes other and different security, he thereby waives the lien given by law, and must rely upon the security he has stipulated for. In most of the courts these statutory liens are held not to differ essentially from the equitable lien of a vendor, and the same rules are applied to them. But in this state a different rule prevails, for, in Parberry v. Johnson, 51 Miss., 291, it was held that the lien of a mechanic was not waived by taking other security, as would be the case of the equitable vendor’s lien! Nearly 'twenty years have elapsed since this decision, and our laws have twice since been codified without changing the rule. We are therefore unwilling to disturb it, and in cases in which the security taken is not inconsistent with the existence of the statutory lien, the mere fact that other security is taken does not afford a presumption of a waiver of the statutory lien. A party may waive the lien by contract (Buck v. Payne, 52 Miss., 271); and if the security taken is inconsistent with that given by law, this, as to innocent purchasers at least, is a waiver. Gaines v. Keeton, 68 Miss., 473; 2 Jones on Liens, § 1520.

Judgment reversed, demurrer overruled and cause remanded.