Page:North Dakota Reports (vol. 2).pdf/82

 who takes mortgage security for a debt thereby waives the benefit of any statutory lien to which he might otherwise be entitled. It has sometimes been so held, but only when the security taken, or length of time given for payment, was entirely inconsistent with the idea of relying upon or enforcing a lien, and manifested an intent to waive it. The question of waiver is a question of intent; and, where the law raises a presumption of waiver from the act of the party in taking security, such presumption may be overcome by evidence aliunde. Pratt v. Eaton, 65 Mo. 165; Clark v. Moore, 64 Ill. 274; Gilcrest v. Gottschalk, 39 Iowa 311; Monteith v. Printing Co., 16 Mo. App. 450; Peck v. Bridwell, 10 Mo. App. 524. But in this case all presumptions of intent to waive the lien are refuted by the express agreement of the parties that the plaintiff waived no right to a lien by taking the note and mortgage. Nor is there any allegation in the answer, or claim in the evidence, that the mortgage was taken in lieu of the lien, or that there was any intent to waive the lien. Without an allegation of this kind there was no issue in the point for the court to pass upon. See East v. Ferguson, 59 Ind. 169. The findings are attacked in the assignment of errors as not being sustained by the evidence. The point is not urged in this court, but we have examined the evidence, which is brief and uncontradicted, and it fairly supports all the findings. The judgment of the district court must be affirmed. All concur.