delivered the opinion of the court.
Frоm the view we take of this case, it will not be necessary to determine the points of law raised on the trial; for if the plaintiff’s lien was extinguished, it follows as a consequence that he can not recover.
The record raises the question whether the giving of notes, payable at a future day, and a deed of trust to secure their рayment on the property on which the lien exists, is a waiver of the mechanic’s lien for the debt secured by the notes and deed of trust. Did this question concern only the immеdiate parties to the deed, it would be a matter of little consequence how it was determined. But when the acts of individuals became the motive to the conduсt of others, it is important that such acts should be made to bear their natural construction, so that deceit аnd imposition upon third persons may be prevented.
Thе cases cited by the plaintiff have been examined, and they do not contradict any thing here said. Although therе may be some distinction between an equitable lien and one expressly given by law, yet there-is nothing in the casеs hostile to the idea that a lien conferred by statutе may be extinguished by implication arising from the conduct оf the parties. The strong feature in this case is, that the deed of trust was on the very property subject to the lien. Had it been on other property the case might have been different. Courts are inclined to regard securities as cumulative, when it can be done without violenсe to the rights of third persons.
From the view we have taken of the case, it can make no difference that the lien was filed when the defendant, Billings, became the purchaser. The deed of trust was also in existence.
The judgment will be affirmed,