This action was brought originally in the Cuyahoga Common Pleas by the Century Improvement Company against the Conservative Mortgage & Guarantee Company for the foreclosure of a certain mortgage.

The mortgage purchased by the Improvement Company for $18,000 specifically waived priority in favor of a first mortgage of $30,-000 on the same premises. Subsequently the $30,000 mortgage was paid and another mortgage executed by the owner of the fee for $50,000. The Improvement Company’s assign- or of the $18,000 mortgage executed a waiver of priority with the formalities of the mortgage and the same was placed on record.

The judgment of the Common Pleas in finding that the waiver of priority was not capable of being recorded as a mortgage and therefore said waiver was no notice to the Improvement Company of said waiver, was affirmed by the Court of Appeals.

The plaintiffs in error contend that the waiver of priority was notice to the Improvement Company and that therefore the $18,000 mortgage had no priority of the $50,000 mortgage.