payment, acquires the benefit of the lien. Adams v. Feeder Ky. (41 S. W. Rep. 275).

Ky.

Sec. 960. Vendor's lien-Priority-Enforcement against bona fide purchaser. A vendor's lien reserved by parol cannot be enforced against a subsequent bona fide purchaser for value who had no notice thereof. Yancey v. Blakemore, 95 Va. 263 (28 S. E. Rep. 336). Where the holder of a vendor's lien, for the purpose of enabling the owner to procure a loan on the property, agreed to take a second mortgage to secure his debt, he does not thereby lose his priority as against other liens of which he had no notice and which were prior to the mortgage of the party making the loan because of his notice thereof. United States Bldg. & Loan Ass'n v. Thompson, (41 S. W. Rep. 5). A purchaser of a vendor's lien note holding under an unrecorded transfer thereof, is subordinated to a subsequent mortgagee, ignorant of such transfer, who takes a mortgage from the vendee to secure a loan made to him, which he is induced to take by the fraudulent representations of the vendor that his lien had been satisfied. Southern Bldg. & Loan Ass'n v. Brackett, 91 Tex. 44 (40 S. W. Rep. 719). Where an owner of land under a verbal agreement for the sale of it, places the purchaser in possession, and executes a deed, and places it in the hands of a third person, with direction to deliver it on the purchase money being paid or secured by mortgage, and the grantee induces the holder of the deed to deliver it to him that he may exhibit it as evidence of title, and the grantee does so to one ignorant of the facts, and who in good faith makes him a loan secured by mortgage on the property, the grantor in such case is estopped from setting up his claim to the land or a lien on it for purchase money, against such innocent mortgagee. Ogden v. Ogden, 4 O. St. 182, distinguished. Shurtz v. Colvin, 55 O. St. 274 (45 N. E. Rep. 527).

Sec. 961. Vendor's lien-Loss or waiver. A vendor's lien for purchase money is lost in all cases where any security is taken on the land or otherwise, for the whole or part of the purchase money, unless there is an express agreement to the contrary. McKeown v. Collins, 38 Fla. 276 (21 So. Rep.

103). The mere taking of the vendee's note for the amount of the purchase money, no other security therefor being taken, does not operate as a waiver of the lien. Knight v. Knight, 113 Ala. 597 (21 So. Rep. 407). A vendor's agreement in his executory contract of sale to take the note of either of two persons for the amount of the purchase price and to make a deed when "said payment is made or secured," does not operate to discharge his lien for purchase money. Mansfield v. Dameron, 42 W. Va. 794 (26 S. E. Rep. 527; 57 Am. St. Rep. 884). Taking new notes in renewal of the original purchase money notes although in the name of another who has become the owner of the obligations by reason of the death of the original payee, does not constitute a waiver of a vendor's lien. Curtis v. Clarke, 113 Mich. 458 (71 N. W. Rep. 845). Taking a mortgage from the vendee on land to secure the payment of the purchase money operates as a waiver of the lien. Fields v. Drennen, 115 Ala. 558 (22 So. Rep. 114); Shurtz v; Colvin, 55 O. St. 274 (45 N. E. Rep. 527). The acceptance of a mortgage as security for a portion of the unpaid purchase money of the land sold, is a waiver of the vendor's lien for the remainder in the absence of an express agreement that it shall be retained. Robbins v. Masteller, 147 Ind. 122 (46 N. E. Rep. 330). Citing, Anderson v. Donnell, 66 Ind. 150; Jones, Liens, § 1087; Orrick v. Durham, 79 Mo. 174; Avery v. Clark, 87 Cal. 619 (25 Pac. Rep. 919; 22 Am. St. Rep. 273); Fish v. Howland, 1 Paige 20. Construing and applying Cal. Civ. Code, § 3046, providing that "one who sells real property has a vendor's lien thereon independent of possession for so much of the price as remains unpaid and unsecured otherwise than by the personal obligation of the buyer," it is held that the lien is waived by the taking of a mortgage, although it has no valid acknowledgement and the record thereof is void on that account. Lee v. Murphy, 119 Cal. 364 (51 Pac. Rep. 549). Particular facts held insufficient to show a waiver of a vendor's lien. Jordan v. Buena Vista Co., 95 Va. 285 (28 S. E. Rep. 321).

Sec. 962. Enforcement of vendor's lien-Practice. A complaint to enforce a vendor's lien, where a note was

given for the purchase price, is fatally defective if it fails to set out the note and allege its nonpayment. Moore v. Moxey's Adm'r, Ky. (39 S. W. Rep. 420). A complaint to enforce a vendor's lien, need not allege that a defendant who purchased part of the land from the vendee had notice of the lien. Particular allegations held sufficient to show that the plaintiff was owner of the obligation given for purchase money. Knight v. Knight, 113 Ala. 597 (21 So. Rep. 407). Applying Cal. Civ. Code, § 2911, it is held that an action to enforce a vendor's lien is barred by the same lapse of time which bars an action on the obligation in connection with which the lien is sought to be enforced. California Sav. Bank v. Parrish, 116 Cal. 254 (48 Pac. Rep. 73). One holding a judgment establishing an attachment lien against property, is not bound by a subsequent decree foreclosing a vendor's lien on the property, and a sale thereunder where he was not made a party to such degree, although he may have had notice of it. His remedy is not by redemption from the sale, but by sale under his judgment. McDonald v. Miller, 90 Tex. 309 (39 S. W. Rep. 89). In a suit to enforce a purchase money lien reserved in a deed conveying legal title, with only covenant of general warranty, it is not necessary to make prior lienors, holding liens against the property, parties, nor to refer the case to ascertain such liens, unless it appear that the vendor is insolvent. But if the plaintiff in his bill shows such liens, and proposes to have the purchase money go to discharge them, the owners of such prior liens must be parties; and where in such a case, the conveyance contains a covenant for further assurance in addition to a covenant of warranty, the vendor cannot have a decree for his debt until such liens be removed and the holders thereof are necessary parties, except such as have released their liens. McClaugherty v. Croft, 43 W. Va. 270 (27 S. E. Rep. 246). It is error, to decree a sale of land under a vendor's lien to pay the amount admitted to be due on the note secured, where the plaintiff has not waived his lien for an alleged balance in controversy. Ky. Civ. Code, § 694, subd. 3, applied. Breckinridge v. Peebles' Adm'r, Ky. (38 S. W. Rep. 871). In an action to enforce a vendor's lien, the plaintiff is not entitled to sell improvements placed upon a portion of the land by a rail

road company which has been conveyed to it for a right of way, although it took with notice of the lien, where such company offers to do equity, but the court has power to ascertain and decree the amount of the purchase price which the railroad company should pay on account of the land conveyed to it. First Nat. Bank v. Thompson, 116 Ala. 166 (22 So. Rep. 668). Applying W. Va. Code, ch. 131, § 16, it is held that in enforcing a vendor's lien for purchase money, the court in rendering its decree will ascertain the aggregate amount of principal and interest due on the notes executed for such purchase money, for which the vendor's lien is retained, to the date of the decree, and decree that interest be paid on such aggregate from that time. Triplett v. Lake, 43 W. Va. 428 (27 S. E. Rep. 363). Mill & V. Tenn. Code, §§ 4306, 4308, construed and applied-enforcement of vendor's lien where purchase money is payable in installments. Green v. Farvis, Tenn. (42 S. W. Rep. 165).

WASTE.

EPITOME OF CASES.

Sec. 963. What constitutes-Who liable for-Remedies. It is waste for a tenant for life to take petroleum oil from the land. The rule is the same where the life tenant owns the fee in a proportionate part of the real estate. A tenant for life or a tenant in common in sole possession, claiming ownership, taking petroleum oil from the land and converting it to his exclusive use, is liable to account on the basis of rents and profits, not per annual rental; and in case of a life tenant, he is not entitled to have the proceeds invested so that he may have interest thereon during the life estate, but the proceeds go at once to the owner of the next vested estate of inheritance. Williamson v. Jones, 43 W. Va. 652 (27 S. E. Rep. 411; 64 Am. St. Rep. 891; 38 L. R. A. 694). Cutting openings in a party wall by a lessee, for the purpose of carrying on a business in violation of the terms of his lease, constitutes waste against his lessor, although done with the per

mission of the other joint owner of the wall. The lessor is entitled to have the waste repaired at once by the fixing of the opening instead of accepting security for reparation at the end of the term. Klie v. Von Broock, 56 N. J. Eq. 18 (37 Atl. Rep. 469). In Alabama it is held that a purchaser at an execution sale is not liable to the redemptioner for waste. O'Connor v. Bank of Attalla, 116 Ala. 585 (22 So. Rep. 902). Injunction against waste should be granted to a plaintiff only to the extent to which he shows title to the land. Blackwell, 99 Tenn. 352 (41 S. W. Rep. 1061). C. Code, § 627, a tenant in common may sue his cotenant for Hinson v. Hinson, 120 N. C. 400 (27 S. E. Rep. 80).

waste.

Wilcox v.

Under N.

WATERS AND WATER COURSES.

EPITOME OF CASES.

Sec. 964. What constitutes a water course. To constitute a water course the size of the stream is not material; it must, however, be a stream in fact, as distinguished from mere surface drainage occasioned by freshets or other extraordinary causes, but the flow of water need not be continuous. Town v. Missouri Pac. Ry. Co., 50 Neb. 768 (70 N. W. Rep. 402). Surface water does not become a water course by being gathered into a ditch and led away, and the proprietor of lands upon which such a ditch runs may divert the water for his own purposes. Case v. Hoffman, Wis. (72 N. W. Rep. 390). The fact that, because of the level character of the land, the water of a stream spreads over a wide space without apparent banks, does not deprive it of its character as a water course provided it usually flows in a continuous current. New York, C. & St. L. R. Co. v. Hamlet Hay Co., 149 Ind. 344 (47 N. E. Rep. 1060). Where a water course fed by springs, disappears in a cranberry marsh two miles wide and three miles long, upon which there is no definite channel or current, the water disappearing either by evaporation or percolation, a water course is held not to exist