
    Porter vs. Earthman. Vaulx and Williams vs. Earthman.
    Judgments rendered Upon different days of the same term, relate to the first day of the term, as between creditors, although the record may show the day upon which each was rendered.
    The creditors who are plaintiffs in executions- issued upon judgments rendered of a later day of the term, are entitled to a rateable division of the moneys levied upon executions issued upon judgments rendered on a* prior day in the same, term, as if the same were all rendered of the first day of the term.
    The plaintiffs in error recovered judgment against the heirs of Buchanan Lanier, on the eighteenth day of October, 1831, at the October sessions, 1831, of the Davidson county court. At the same term of the same court, the defendant and several other persons, on the twenty-second of October, 1831, recovered judgments against said heirs. The lands of the heirs were sold under all the judgments; and there not being sufficient of money from the sale of the property to satisfy all the executions, the sheriff came into court and asked the court to instruct him how said moneys should be distributed amongst the several creditors. The plaintiffs in error thereupon moved the court to instruct the sheriff to pay and appropriate so much of the moneys aforesaid, as would satisfy their execution fully. The defendant Earthman, one of the plaintiffs in the other executions, having been admitted by consent to defend said motion, appeared by his attorney and opposed the same; and urged a rateable distribution of the money among the several^ creditors, in proportion to the amount of their debts. The court decided and so instructed the sheriff, that the moneys by him collected should be rateably divided amongst the several claimants in all the judgments, the oldest and youngest together, in proportion to their several demands. To this opinion of the court the plaintiffs excepted; and by consent of parties an appeal in the nature of a writ of error is prosecuted to this court.
    
      J. S. Yerger, for the plaintiffs in error.
    The only question presented by the record in this case, is, whether the judgment first rendered is to be first satisfied, or whether judgments rendered at different days of the same term are to relate to the first day of the term, and be entitled to equal satisfaction. For the plaintiffs in error, I contend that the first judgment is entitled to the first satisfaction.
    By the common law, the lands were bound by the judgment, and the judgment formed a lien from the time it took effect. 4 Com. Dig. Execution D. 1: Hickman vs. Murfree, Mar. and Yerg. Rep. 26. The lien fixes upon the land, and no sale or appropriation of it by the debtor can divest it, or prevent it from taking effect. 4 Com. D'ig. Execution D. 1.
    Sp as to personally; it is bound by the award of exer cution: from that time the lien commences, and although it be sold bona fide, it may be taken in execution. 4 Com. Dig. Execution D. 2: Johnson vs. Ball and others, 1 Yerg. Rep. 291.
    Since the statute 29 Car. II, the lien commences- from the delivery of the execution to the sheriff, and a sale after that time is void against the execution creditor. 18 John. Rep. 311, 363.
    These authorities prove clearly, that when the lien takes effect, no subsequent act can destroy it. The question is, when does.it commence in personal actions ? ' ’
    At the common law, this lien commences and binds only from the day the judgment is rendered. Co. Lit. 102 a: 4 Com. Dig. Execution D. 1.
    It is evident that the judgment binds the land; this was expressly decided in the case of Hickman vs. Murfree, by this court. Mar. and Yerg. Rep. 26.
    This judgment at common law is supposed to have been rendered on the first day of the term, because the term was considered in this respect as but one day, and the day of signing the judgment did not appear upon the record .
    Although this was the presumption of the law, or fiction of relation in order to aid justice, it was not conclusive, but could be averred against when it was materia! to ascertain the precise time to insure justice to the parties. If it appeared upon the record by memorandum, or otherwise, that the suit had been continued to a different day of the term, the presumption or fiction of relation was destroyed, and the judgment was considered as rendered of the day actually appearing upon the record, and took effect from that day. This presumption or fiction-of relation having been resorted to in aid of the record. falls to the ground, when the record itself controverts the presumption or fiction of relation, and disproves it: 3 Salkeld’s Reports, 9, 212: 3 Burrows’ Reports, 1241 $ 1595: 1 Term Rep.- 116: Bull. N. P. 137: Tidd’s Pr. 2S5, 294, 295: Murfree vs. Carmack, at the present term of this court.
    Although the fact may not appear upon the record when the judgment was rendered, yet if it becomes necessary and material to ascertain the true day when a judgment was rendered, this presumption or fiction of relation, may be averred against in pleading, and the true day of signing judgment ascertained.
    Thus by this fiction, all judgments are supposed to bé rendered in term, and to relate to the first day of the term; but in practice judgments are frequently signed in vacation. In such case, if the purposes of justice require that the true time when the judgment was rendered should be made appear, a party may show it by averment ■in pleading: Littleton vs. Cross and Moody, 3 Barnwell and Cresswell, 317: Same case, 10 Eng. Com. Law Rep. 93.
    The court in the above case shy it is a general rule, when it is for the interest of the party pleading to show that a proceeding did ntít take place at the precise time when by fiction of law it is supposed to have happened, it is competent for him to do so. And that whenever a fiction of law works injustice, and the facts which by the fiction are supposed to exist are inconsistent with the real facts, a court of law ought to look to the real facts.
    Again: the fiction of law is that all writs are supposed to issue in term, and generally speaking, a party is es-topped by the teste of the writ from disputing the time when it issued. But when it is necessary for the purposes of justice that a party shall be permitted to show that it issued in vacation, he is permitted to do so, and therefore it has, been decided that a defendant, in order to avail-himself of the statute of limitations, may show the very time when the writ'issued. This was decided in the case of Johnson vs. Smith, 2 Bur. R. 950. Lord Mansfield Ch. J. .there lays down the true principle applicable to this case. He says, “The court would not endure that a mere form or fiction of law introduced for the sake of justice, should work a wrong or injury, contrary to the real truth or substance of the thing.”
    If the fiction of law that judgments are pronounced on the first day of the term, were to prevail in this case, when in point of fact the judgments were obtained upon different days of the term, it would work a wrong and injury by depriving the plaintiffs in error of -an advantage and preference that the law gives them as the reward of. their diligence. In this case, the actual time when the judgment is rendered is the substance, the fiction of relation the mere form. Thus it will be seen that by the rules of the common law, this fiction of relation is not conclusive, but may be averred against and the true time shown.
    This supposition or presumption, that the judgment was rendered on the first day of the term, was done away in England, by the statute 29 Charles II,’which requires that the officer shall set down the day the judgment was rendered. 4 Com. Dig. Execution D. 1.
    Lord Mansfield, in commenting upon this statute, says, “the moment the law said judgments should bind purchasers only from the signing, it followed that in the case of purchasers, the time of signing might be shown.” 2 Bur. Rep. 967.
    This reasoning applies strictly to this case. The statute of 1799, ch. 14, sec. 2, gives to the creditor a lien upon the lands of his debtor for 12 months after judgment rendered. Mar. and Yer. Rep. 26. In order, therefore, to avail himself of this-benefit he must be permitted to show the time when the judgment was actually obtained; because if actually obtained on a later day of the term, and it is held to relate to the first day, he may not have the lien for twelve months. Our acts of assembly of 1809, ch. 49, sec. 20, (1 Scott’s Rev. Laws, 1154,) and 1817, ch. 48, sec. 9, (2 Scott’s Rev. Laws, 343,) require the minutes of each day to be signed; all judgments signed that day are consequently completed; they cannot by possibility relate to the first day of the term; if they do, as the statute of 29 Charles II, is not in force here, it follows that a sale of lands before judgment, but after the court commenced its session, is void against the judgment creditor, which is contrary to the provisions of our act of 1799, ch. 14, sec. 2, which creates a lien against purchasers only from the day the judgment was rendered. Martin and Yerger’s Rep. 26: 1 Scott’s Rev. Laws, 643.
    This consequence is inevitable; there is either a lien from the first day of the term by fiction of law, or from the day the judgment is rendered. If it relate to the first 'day, the lien commences from that day, and if it com-menees on that day, it is better than a sale made after it.
    This court at the present term, unanimously determined in the case of Murfree’s lessee vs. Carmack, that a sale made before the day the judgment was rendered, although after the term commenced, was good. This decision is not founded on common law, because the general principle of the common law, with the exceptions I have endeavored to show heretofore, is that the land is bound from the first day of the term. It is not founded on the statute of 29 Charles II, for it is not in force in this state, (1 Yerger’s Rep. 291;) but it is wholly founded on our acts of assembly.
    If the judgment then does not relate, but forms a lien against a purchaser from the day it was rendered, why is it that it does not form it against a subsequent judgment?
    It cannot be a lien, and no lien. It cannot be a lien for one purpose, and not for another.
    A lien is a preference given, by law or the act of the parties; when the law fixes the lien, it is as binding and operative as if made by contract. Martin and Yer-ger’s Rep. 361: 12 Wheat. R. 177.
    In the Supreme Court of the United States, when judgments are entered and the minutes signed each day, when an appellant died after the term, but before decree, t;he court ordered the decree to be entered as of the first day. There was no necessity for this if it would relate. 2 Peter’s Rep. S. C. U. 4S1.
    Upon principle it is clear the oldest judgment binds the land, and is a lien. Hickman vs. Murfree, Martin and Yerger’s Rep. 26. It is also clear that by the common law, the judgment binds from the day it was rendered. But as the term was not divided into days; and as the records did not show upon what particular day an act was done, all the term was necessarily obliged to be considered one day, and consequently all judgments rendered during the term, were considered as rendered on the first day, with the right to aver against them as I have shown. Here the records of each day show what was done; and therefore the principle of relation cannot apply.
    Our acts have made no exception in favor of purchasers, except the judgment creditor delays to proceed for more than a year after judgment rendered; it follows of course, if the court decides that the judgment relates to the first day, that a purchaser after the first day, and before judgment is actually rendered, cannot be protected. He was not protected at common law. Yiner’s Ab, Judgment W. He is not protected by any act of assembly unless it is the acts requiring the minutes to be signed each day; and if he is protected by these acts, it is wholly on the principle that the judgment does not bind except from the day it was rendered; and if it binds from that day, it must bind against creditors as well as purchasers.
    In North Carolina, the courts have decided that the judgment does not bind land, when a fieri facias is sued out; consequently the North Carolina cases cited cannot apply, as we have settled it in this State that the judgment does bind. Young vs. Kenyan, 2 Day’s Cases, 252: 3 Dane’s Ab. 516: 12 Wheat. Rep. 177: Murfree vs. Hickman, Martin and Yerger’s Rep. 26: Murfree’s lessee vs. Carmack, decided at the present term of this court.
    Thus then it appearing that the judgment creditor has a lien from the rendition of his judgment against the lands of the debtor; that the fiction of law in this case is inconsistent with the fact, and if it prevailed would work great injustice by defeating a lien given by the law; and that the.fiction is abolished by our statutes, and the entries upon the records, if it would operate at all in such a case as the present, I confidently expect the judgment to be reversed and judgment to be given for the plaintiffs in error.
    
      E. H. Ewing, for defendant in error.
    The defendant in error maintains that the judgment of the court below was right, for the following reasons:
    1. It is a general rule of law that the whole term of a court is but one legal day, and of course all judgments of the same term have equal privileges; this general rule has never been modified or altered but for the furtherance of justice or to reward superior diligence. The statute of 29 Car. II, giving a judgment a lien upon land only from the time of its being signed, applies only to subsequent purchasers, if it be in force at all in this country, and not to creditors; our own statute of 1799, is not intended to have any general influence upon the relation of judgments, but only to designate at what time the lien commences and ends, as it regards subsequent purchasers. If the judgment does not in this instance relate to the first day of the term, when does it? If the general rule does not apply here, it is no rule at all. See as to the matters here stated, 2 Saunders, marginal page 8, in notes: 1 Wilson, 36, 37: Jacob’s Law Die. vol, 6, 212: 2 Chitty’s Black. 141, in notes: Kelyng, 1070-8: Yelv. 35: 3 Dane’s Ab, 511.
    
      2. If ¡t be the law of England that the lien of iudgment commences for all purposes from the day of their being signed, and that subsequent judgments of the same tei’m are excluded from a participation in the lien of pri- or judgments, there exists a reason for it there which does not exist here; and the reason ceasing the law ceases. There is room there for superior diligence, and none here; there the judgment has to be signed, to be filed and to be docketed, all voluntary substantive acts of the plaintiff, in which he may display vigilance; here, these, if done at all, are matters of course, done by the clerk; alterations have been made in the practice in this country in some respects, which of necessity bring on alterations in others; causes are docketed in the county court, not according to the priority in the issuance of the writs, but as the writs are handed in by the sheriff to the clerk; judgments in debt cases are taken on the first day of the term, though many of them may be at the end of the docket; the clerk frequently attends to the taking of judgments on scire facias, without the interposition of attorneys at all; his caprice might, if the law be not as I have slated it, govern the priority of lien. The true rule is, that the judgments are in the breast of the court until its rise, when they are all evolved with equal privileges. See as to superior diligence, 2 Bay’s S. C. Rep. 8: Mar. and Yerg. 26, Hickman vs. Murfree.
    3. Executions against personal property are tested of the. term, and not of a particular day in the term, and bind such property from the teste; here there is no priority; by analogy there should be none in the lien of judgments upon real property.
    4. It is equitable that the money should be divided rateably amongst the several claimants, and therefore pri-ma facie lawful. If the plaintiffs wish a different course adopted, it is incumbent on them to show authorities precisely in point to justify the proceeding.
   CatRon, Ch. J. . ..

This question arises between execution creditors against the common debtor, where the judgments were recovered at the same term of the court. Has the judgment first entered a priority of lien over one of a subsequent date? In the case of Johnson vs. Ball, (1 Yerg. Rep. 291) the subject of lien underwent elaborate discussion. There the court held, that where executions were levied on the same property issuing from different courts, the oldest judgment must be first satisfied. It is there also holden, that executions do relate to their teste, as in England before the passage of the 29 Car. II, save some slight alterations by statute. The position is undoubtedly true, and. so is the case of Preston vs. Surgoine, Peck’s Rep. 80. The statute of 29 Car. goes much further to protect the purchaser from the debtor than ours, as to the goods, but it was made for the protection of purchasers. 2 Bac. Ab. Execution I. Before, the day of the rendition of the judgment could not be shown, and many times (says the preamble to the statute) judgments in the King’s court at Westminster, do relate to the first day of the term whereof they are entered, and bind the defendant’s lands from that time, although, in truth, entered and signed in vacation, after said term, whereby purchasers find themselves aggrieved. The term was but one day in legal justice. This fiction was adopted to attain the ends of justice. Our writ of fieri facias dates on its face from the first day of the term, recognizing the fiction, which exists in force, save in so far as exceptions are made to it by statutes. By common law, then, the judgment bound the lands from the first day of the term in which it purported to have been rendered, as between the living plaintiff and defendant. Has any statute of' North Carolina or Tennessee altered this common law rule? I think not; and that as to the plaintiffs against the same defendant, recovering judgments at the same term, though on different days thereof, the term must, still, for the obtainment of equal justice among them,, be taken as only one day.

If the rule adopted m the county court, of ordering the executions to be satisfied rateably, has ever been vi-dated by the sheriffs or courts, I have no knowledge of it. And such was, I know, the advice of many of the profession at Nashville ten or twelve years since, in cases of magnitude and much interest to the parties concerned; who acted accordingly and divided the money. The fiction means nothing more nor less than that the parties have been equally vigilant in a case like the present; and that, when the money is returned into court by the sheriff, if there be not enough to pay the whole of the judgments by force of which it was collected, the court doing equity among its suitors, makes them abate rateably. Courts of law, as well as of equity, do not only compel suitors in court to do equity among other, by setting off mutual judgments, and entering up satisfaction and the like, but they compel their officers to do justice to each other, especially in matters of fees. Baker vs. Dacie, 6 Vesev, 688: Mar. and Yerg. 171, and authorities cited. When the executions issue from different courts, as in Johnson vs. Ball, then a positive rule must be adopted, because the one court has no control, or ráther efficient means of control, over the-suitors of the other. The creditors are not all before the same court, so that it can compel them to do justice among other; nor can it judge of the vigilance by the creditors.in obtaining their judgments and issuing their executions. This subject- is infinitely subtle and complex in its consequences when different jurisdictions conflict; but this is a new case, growing out of the nature of our institutions, and their dissimilarity from those of Great Britain, where no rule is found to apply to such a case; but in the present instance we find a rule.

Peck, J.

There is no aspect in which the question of the lien of a judgment can be presented, that is not subject to objection, if matters of convenience alone are looked to. The judgment of a county court is of just as much validity as orle rendered by this court; while that court acts within its jurisdiction, and parties rest the judgment there, it is equally binding and final, and the. lien just as effectual as that of any other tribunal in the State.

It is said to appear inconsistent that the judgment of a county court rendered where the sitting had been but of á few days duration, should, by the’teste of the execution, loose the force of its'lien by reason that a judgment of this court sitting three months, had overreached it by relation to the first day of the term, and that in fact the estate might be seized and sold, subject to be defeated by the lien of the younger judgment rendered here.

There is no greater evil in this, than those that may be made to arise by even the voluntary act of a defendant, so far as creditors are concerned. A continuance, suffering judgment by default, a demurrer, reasons in arrest of judgment, appeal or writ of error, may either of them be resorted to, and give one plaintiff an advantage over another. It is not .vigilance simply that gives the advantage; circumstances over which the court has no control, may, and often does produce it; and courts must be content with the uniformity which will result from human institutions, at best imperfect, for every case of seeming hardship cannot be remedied.

Take for instance, the case first put, and it will form no ground for abandoning the rule which gives the lien from the teste. It is true, as stated, that this court sits for months, some of the county courts for days only; but the order of things is reversed when we get to Rey-noldsburgh. There the court at some of its sessions sits but one day; while the county**court at Nashville, and at other places, sits one month. In such cases, the justices of the county court would feel indignant, if by resorting to the very day the judgment was rendered, the ephemeral session (in a Cyprus' Swamp, without lawyers, books or courthouse,) should take precedence, and de~ feal the judgment of their lengthy term. So too of the circuit court at Nashville, which sits perhaps as long as the supreme court at the same place, and much longer than that court at Joneshorough, Knoxville or Sparta. While ever we consider that there cannot be uniformity and entire equality in the rules touching this subject, it is useless to depart from the principle which gives the lien from the teste; indeed, to my mind the argument for allowing it in the cases brought into this court, is much the most reasonable; the delay which is usually incident upon the writ of error in a court thronged with business, argues powerfully in favor of the creditor here; he has been delayed perhaps for years, and when he gets his judgment affirmed, it does not relate to the proceédings of the inferior court, but he has to receive his judgment at our hands; and-it is but-reasonable we should give it to him with every allowance in his favor the law will tolerate,. Considering, therefore, that there are county courts, circuit and chancery courts, as well as this court, all issuing executions; that the length of the terms of these are various in the different sections of the State, the rule is the most safe which allows the lien as proposed in this opinion, and certainly it is no objection that it savors of fiction; for the courts being open, the times of sitting fixed by law, every man is supposed to know what is doing in these tribunals. If a purchaser at execution sale desires to be informed of the condition of causes and judgments, either rendered or anticipated, the means of knowing lie before him; and when the law of lien is permanently established, it is .improbable that he will bid at much risk; and this is one of the reasons of the maxim, caveat emptor, and why he cannot get his money back if he commit an error in purchasing.

But, aside from reasoning, how is the law? It is required by the constitution, that writs (executions) shall bear teste. This clause had meaning when inserted in the constitution, and while we keep m mind that there ■. , e , . , . , x . , , was always a mode of thinking and treating the term as but one day, it was sensible to insert it. To many purposes our courts are always open. The issuing of process, and superceding it when improperly issued, are acts of every day’s occurrence, to prove that even the execution, which is said to be the life of the law, are under the control of the judge, though no court be sitting.

When the court .did set, judgments were not as at present entered every day, and. the minutes signed; journals of the proceedings were kept, it is true, during the whole term, and it may be dates were preserved; but it is equally true, they were then, as the minutes are now, under the control of the court while in session; and then, as at this day, entries were not made always on the very day the order was given for a judgment.

Judge Haywood, justly esteemed as profoundly read in the common law, had grown up with the practice in North Carolina, and has generally assisted in making the practice for us in this country, has given his views upon this subject in the case of Preston vs. Surguoin, Peck’s Rep. 80. There is no statute inconsistent with the common law rule, and certainly no good reason can be perceived for establishing by construction, a rule which shall conflict with those hitherto followed.

Cases have arisen where it became necessary to ascertain the particular day of the term, but that necessity arose from the nature of the transaction. As all our courts have a concurrent jurisdiction in the probate of deeds, it was found in Carmack’s case, that unless we could reach the day of probate, injustice would be done by the judgment (which was really younger) overreaching the deed, if such judgment be permitted to have effect from the first day of the term. The necessity here was obvious, but it did not change the rule; in fact it admits and recognizes it, for in the opinion it is at least intimated, if not expressed, that the fiction may be disregarded where jus- , , , tioe requires it.

Being satisfied with the case of Preston vs. Surguoin, and knowing of no case where the court has come to a different result, let a division of the fund _in the hands of the sheriff, according to this opinion, he made rateably among the creditors.

Green, J.

(dissented.) At the October term, 1831, of the county court of Davidson, the plaintiffs obtained judgments against the heirs of B. H. Lanier. These were rendered on the 18th day of the month, and on the 22d, and during the same term, several other judgments were obtained against the same defendant. Executions on all the judgments came to the hands of the sheriff the same day, were all on the same day levied on the land, which was sold by virtue of them all. The sheriff made a special return of these facts, and the plaintiffs moved the court to direct the application of the money to the satisfaction of their executions in preference to those obtained on the 22d, The court refused to do this, but directed the money to be applied in equal proportions to all the judgments.

The question now is, whether those judgments which were obtained on the 18th are to be preferred. In the case of Hickman vs. Murfree, (Mar. and Yer. Rep. 26,) this court decided that a judgment was a lien on the defendant’s lands. In Murfree’s lessee vs. Carmack and Williams, determined at the present term, the court decide that a judgment does not relate to the first day of the term, but is limited to the day of the term on which it is entered up. I am satisfied that decision was correct. Why resort to the common law fiction, that the judgment relates to the first day of the term, when the reason of it has ceased. Here, our records speak of the proceedings of .the court on each day; of its adjournment to a specified hour the next morning, and of its meeting at that hour. The minutes, too, of the proceedings of each day, are signed by the court on the succeeding morning, after having been read and corrected.

What would he the consequence of this doctrine of relation, were the courts to adhere to this fiction of the common law? The term of this court commenced the first Monday of March, and will continue until the last of May. Many of the county courts continue in session only a few days. Suppose one of these courts to sit on the 2d Monday of March, and render a judgment against a debtor. The execution may issue, and the land be sold before the rise of this court. And yet, if this doctrine of relation be law here, a judgment may be pronounced the last day of this term in favor of another plaintiff against the same defendant, and by relating to the first day of the term, would be á lien on the land precedent to that by virtue of which it may have been sold. Should the land be re-sold by yirtue of the execution founded on such judgment, how is the purchaser to get back his money? The land is purchased when no lien exists upon it, and the purchaser acquires a good title. Shall he be deprived of it by a fiction of law? Surely not. But in the case supposed, if the land were not sold until after the rise of this court, and both executions are in the hands of the sheriff at the same time, would it not be absurd that a judgment obtained the 30th of May, should take precedence in satisfaction to one obtained the 10th of March? And yet such would be the inevitable consequence, if a judgment relates to the first day of the term. None of these absurdities exist in England, and it may be well enough said there, that the fiction was resorted to for the ends of justice. But here, where we have one hundred and fifty courts in the State, whose judgnen^-arsssS^ien on all the lands of the party against^who^TfeitLt^^ wherever those lands may be sitimt£dj^>tfie doctrine is wholly unsuited, and if adopted, wov cious in its consequences. As between be well enough; but as it relates to others, whether pur- , . , ,. . . £ chasers or judgment creditors, it is unreasonable. If a judgment does not relate to the first day of the term, the question is settled. It there is a lien from the time it is rendered, and must have precedence of one rendered on a later day in the same term of the same court, the court would have no power after the land has been sold, to order an equal distribution of the money among creditors, whose judgments were obtained on different days. The precedence of lien, confers a prior right, which the court cannot take away.

I therefore think the judgment should be reversed, and that the sheriff pay the money in his hands in satisfaction of the judgments obtained the 18th of the month, and distribute the balance among those whose judgments were obtained the 22d, and that the defendant in error pay the costs.

Whyte, J.

delivered no opinion in this cause, because of his absence during part of the argument.

Judgment affirmed.  