Page:Federal Reporter, 1st Series, Volume 4.djvu/597

COOS BÀ'S' WAGON 00. V. OBOCEBB. 588 �Chillou V. BraiderCs AdnCx, 2 Black, 460; Lewis y. Hawkins, 23 Wall. 125; Gilman v. Brown, 1 Mass. 212; Pease y. Kelly, 3 Oregon, 417; Baum v. Grigsby, 21 Cal. 176; Garson v. Green, 1 John. Ch. 808; Champion v. Brown, 6 John. Ch. 402; 1 Wash. S02-4; Adatns' Equity, 126-9; Story's Eq. Jur. § 1217 et seq.; 4 Kent, 151-4. As to the intention of the parties conceming this lien, it is to be considered that the lien is a natural equity, and arises and exists independently of their agreement. Neither is it waived or relinquished unless by an express ■ agreement to that effect, or condùct plainly inconsistent with an intention to- retain it, as by tak- ing a mortgage on the premises, or a distinct and independent security for the purehase money; and the burden of proof is upon the purchaser to show' that the lien has been waived or relinquished. 1 Lead. Cas. Eq. n. Mackreth v. Symmons, supra, 364; Gilman v. Brown, supra, 213; 4 Kent. 152. �In this case no security of any kind was taken for the pay- ment of the unpaid purehase money ; nor is there anything in the circumstances of the case to ôven suggest that there was any understanding or agreement between the parties to the sale to waive the vendor's lien. It is not enough to say that the thought of the lien, as a security for the paymeut of the purehase money, was not in the rainds of the parties at the time of sale; for it is in just such cases that equity, as a means of doing justice between the vendor and vendee, or the assignees of the latter, with notice, creates and enforces this lien. And, therefore, whenever the vendee or assignee seeks to hold property free from this lien, he must show that it was intentionally relinquished by the vendor. �As to whether the contract of sale was an entirety or not, the contention of the defendant is that the sale of the un- patented lands was made by a distinct and' separate contract from that of the patented ones, and therefore there can be no lien upon the latter fOr the purehase money due on the sale of the former. If the premise is correct the conclusion fol- lows of course. �In 2 Parsons on Cont. 517, ît is said that "any contract may consist of many parts ; and these may be considered as ����