
    Ward v. Carey.
    1. Where a deed of land is executed and, simultaneously therewith, the purchaser gives to the vendor a mortgage on the property purchased, to secure a part of the purchase price, the lien of such mortgage is prior to that of any judgment against the purchaser.
    2. The same rule applies where a third person, who holds a mortgage on the property purchased, receives from the purchaser, as a part of the same transaction, and as part of the purchase price, a mortgage on such property, in place of the previous mortgage.
    Motion for leave to file a petition in error to the District Court of Warren county.
    Mary A. McCurdy was the owner of certain real estate, situate in Warren county, which she agreed to sell to Jesse Gustin, on the 26th day of February, 1876. She had previously given a mortgage of the property to the Warren County Building and Loan Association to secure the payment of certain promissory notes, made by her,, to the association, and which had now become duo. In payment of a part of the purchase price to be paid by him, Gustin agreed to assume and pay the amount due upon these notes and mortgage, and for the. remainder to give his notes and mortgage on the property to Mrs. McCurdy. In pursuance of this agreement, Mrs. McCurdy and her husband executed a deed of the property to Gustin, and he at the same time paid to the Building and Loan Association a part of the amount due to it from Mrs. McCurdy, and for the balance, executed and delivered to the association his promissory note and mortgage, to secure its payment, on the property purchased, the association agreeing to receive this mortgage in place of the one made by Mrs. McCurdy, on the express condition that it should be the first lien upon the property. The deed and mortgage were then both placed in the hands of the agent of the Building and Loan Association, and by him handed to the recorder of Warren county for record, the deed not being previously delivered to Gustin, and the association thereupon released the mortgage made to it by Mrs. McCurdy. For the remainder of the purchase money, Gustin gave to Mrs. McCurdy, at the time of tlie execution of her deed to him, his promissory notes and a mortgage on the property purchased to secure such notes.
    These notes and mortgage were afterwards transferred by Mrs. McCurdy to Joshua Carey.
    At the January term, 1876, of the court of common pleas of Warren county, Elom B. Ward and John Custis, partners under the name of Ward & Custis, recovered a judgment against Gustin, in an action which had been commenced before that term, but the judgment was not actually rendered until the 14th dayof March, 1876. Upon this judgment executions have been issued, but no levy made upon the property in controversy.
    In October, 1882, Joshua Carey brought suit, in the court of common pleas of Warren county, to foreclose the mortgage transferred to him by Mrs. McCurdy, and made Ward & Custis and the Building and Loan Association defendants, who filed answers setting up their respective liens, each claiming priority. In this action the only controversy was in regard to the priorities of the judgment and mortgage liens respectively.
    The ease was, on appeal, tried in the district court, which, upon finding the facts above stated, decided that the mortgage liens were prior to the lien of the judgment obtained by Ward and Custis, and rendered judgment accordingly.
    The plaintiffs in error ask leave to file a petition in error to reverse the judgment of the district court.
    
      Savage <& Smith, for the motion.
    
      T. F. Thompson, contra.
   Upson, J.

The question to be decided in this case is whether the lien of .the judgment recovered by Ward & Custis, against G-ustin, is prior to both, or either, of the mortgages made by him to secure the payment of the purchase price of the real estate embraced in the mortgages. The statute provides that the lands of the judgment debtor, “ within the county, where the judgment is entered, shall be bound for the satisfaction thereof from the first day of the term at which judgment is rendered.” The lien of a judgment, by force of this provision of the statute, therefore attaches to all lands, within the county, owned by the judgment debtor on the first day of the term, and as by a fiction of the common law the whole of a term of court is considered as one day, such lien will attach, without levy, to any lands acquired by the judgment debtor at any time during the term at which the judgment is recovered. It is upon this ground contended that, as soon as it was entered, the Ward & Custis judgment bound the land previously purchased, during the same term of court, by Gustin, and under ordinary circumstances this claim could be sustained. The facts found by the district court, however, bring this case within the operation of a principle which constitutes an exception to the general rules governing judgment liens. This principle is, that a mortgage given to secure the payment of purchase money, executed simultaneously with the deed to the purchaser, is superior to the- lien of a judgment against the mortgagor, or any claim against him. This principle applies to the exclusion of intervening liens only when the deed and mortgage are executed at the same time, so as to be regarded as parts of the same contract. In such case there is no interval of time between the taking of the estate by the purchaser and his conveyance of it to the mortgagee. The seizin of the purchaser is instantaneous only, and does not vest in him a title to which the judgment lien can attach in preference to the mortgage. It is well settled that no judgment lien can be a charge upon any greater interest than the defendant owns, and the only interest acquired by Gustin was the title to the land subject to the mortgages, and upon that interest alone the judgment became a lien. In accordance with these principles it has been held in several cases, decided by this court, that when the deed and purchase money mortgage are executed simultaneously, the purchaser acquires no seizin that will entitle his wife to dower, notwithstanding the provision of the statute that, “ a widow shall be endowed of one-third part of all the lands, tenements and real estate of which her husband was seized as an estate of inheritance at any time during the coverture.” The same principles have, in other states, been applied to the exclusion of liens for labor and materials, and claims for homestead exemptions. The rule thus established, and applied to purchase money mortgages alone, is manifestly just and equitable. The mortgage to Mary A. McCurdy was executed’ and delivered by Gustin, at the date of her deed to him, .and as part of the same transaction. That mortgage is therefore clearly within the rule stated. In regard to the mortgage made by Gustin to the Building and Loan Association, it was found, by the district court, that the parties agreed that this should be the first lien upon the property; that it was executed at the same time with the deed to Gustin, and that both deed and mortgage were then placed in the hands of the agent of the association to be by him handed to the recorder for record, but it is claimed by counsel for plaintiff in error that this mortgage was not given for purchase money ; that the transaction was in law a payment of the debt due from Mary A. McCurdy to the association, and a loan by the latter to G-ustin. Conceding that this arrangement is to be regarded as the making of a loan to Gustin, the case still comes within the same principles, for the substance of the transaction was the same, and it will so be treated in equity, as if the note and mortgage had been made to Mrs. McCurdy in part payment for the pro'perty, and had been by her transferred to the association. The effect of the arrangement was to continue the lien of the association without interruption. The mortgage must be considered a purchase money mortgage, and the association in respect thereto is entitled to all the rights of a vendor.

Motion overruled.  