[1.] It is insisted, in the first place, that the taking of a new note in this case, in which other things were included, amounts to a waiver of the vendor’s lien. We know of no such doctrine. If the price of the land be $1,000, and other thing be included in the new note, of the value of $500, and one note taken for both, upon what principle is the lien for $1,000 discharged ? Upon the idea of a confusion of goods ? That don’t apply; for here you can distinguish with perfect accuracy, which is for the land, and what] portion for wheat -or other articles, with as much certainty as if separate notes had been taken.
[2.] In the second place, it is argued, that the abandonment of the vendor’s lien is a question of intention, which should be left to the jury. Admit it. The law is, that the waiver may be actual or implied. But whether the uniting of other considerations in the same note is an implied waiver, is a question of law, just as much as whether taking other and additional security amounts to a waiver. The facts being admitted, the law arising out of any given state of facts, is to be decided by the Courts.
[3.] Again, it is argued, that the amount of the lien in this *242case,is diminished by a loss of a portion of the land, under-paramount title. The lien is upon the whole and every part of the land. If the vendee be entitled to an abatement of his note, on account of the partial failure of the consideration-: for which it was given, that is another thing — a question not presented by the record. Of course, the land is only bound for the balance of the debt actually due. But the residue o f the land left to the purchaser, is liable for the whole of tha ft balance, whatever it may be.
[4.] Lastly, it is contended, that the vendor must look to the proceeds of the sale of the land, and not to the land itself. We know of no such law, especially, if he gave notice of his lien on the day of sale.
