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Judgment
The plaintiff had the vendor''s lien in the property in the hands of the 2nd defendant, the purchaser, and it is contended that because the plaintiff
accepted a pro-note for a portion of the purchase-money from the 1st defendant, the plaintiff must be held to have lost his lien to that extent. There
is no authority which can be said to deal with the exact point raised, viz., whether the acceptance of a personal security by the holder of a lien from
a person other than the purchaser destroys the lien. It is conceded that if the purchaser himself had given the pro-note that would not have ipso
facto deprived the vendor of his lien. The question is really one of intention, whether the vendor intended to forego his lien or not. We do not see,
in the absence of any circumstances pointing to that conclusion, why there should be a presumption in favor of abandonment of the lieu. Section 55
of the Transfer of Property Act deals with vendor''s lien, and it lays down that there should be such a lien in the absence of a contract to the
contrary.
There is nothing in this case from which such a contract can be inferred, and we think the lower courts have rightly decreed the plaintiff''s claim.
We may mention that the learned pleader for the 2nd defendant or appellant relied upon the rulings reported in Muir v. Jolly (1885) 53 E.R. 851;
White v. Wakefield (1835) 58 E.R. 891; T. Cood v. M.D. Cood & Pollard (1822) 10 Price 109; Abdulla Behary v. Mammali Behary ILR
(1910) M. 446, but none of these cases bear out his contention. The second appeal is dismissed.