
    Murfree’s heirs vs. Carmack and Williams.
    In England, it is not in general, permitted a party to aver that a judgment was signed after the first day of the term. But where third persons are interested, and the truth of the fact thereby becomes relevant, the true day on which it was signed may be averred.
    The rule in England, that judgments relate to the first day of the term, does not apply in this State; a judgment here is complete, and takes effect only from the day it was actually rendered.
    Where a judgment is rendered against A, and on the same day he executed a conveyance of his land; it was hejd, that proof of the precise period of the day when .(¿t^jM'gment was rendered and the deed executed, was admissible to determinmvhich had^Hority.
    In the absence of evidence on either side, the titles will be considered equal, and the defendant then must prevail.
    This was an action of ejectment, commenced by Mur-free’s heirs, against the defendants in error, Carmack and Williams. The title to the land in controversy, prior to the 17th January, 1825, was in the defendant, Oliver Williams.
    On the 28th January, 1825, Lucy Hickman recovered a judgment against said Williams, in the county court of Lincoln county, for the sum of-. On this judgment an execution was issued and levied oñ the land. At the sheriff’s sale William H. Murfree, being the highest and best bidder, became the purchaser thereof, and received from the sheriff a deed, vesting all the right and title of Williams in him, the said Murfree. The lessors are the heirs of said Murfree.
    The defendant, Carmack, claimed title to the land by virtue of a mortgage, executed to him by said Oliver Williams, to secure a debt due from Williams to Car-mack. The mortgage was executed on the 28th January, 1825, being the same day on which the judgment was rendered.
    There is no evidence in the record, showing at what precise period of the day tbe judgment was rendered or the mortgage executed; but the term of the court in which the judgment was rendered, commenced on the 17th of the month. The jury under the charge of the circuit court, returned a verdict for the defendants.
    
      D. Craighead, for plaintiff in error.
    In England by construction of the statute of Westminster 2, ch. IS, a judgment formed a. lien upon the debtors land, and by the principles of the common law, the judgment related to. and took effect from the first day of the term, and vested the title by relation in Murfree, from and after the 17th day of January, 1825, the dayín which the term commenced. For this, he cited and commented upon the following authorities: 2 Inst. 395: Dyer’s Rep. 306, b: 2Modern Rep. 310: Co. Litt. 102, a: Lilling-ton’s case, 7 Coke’s Rep. 33, a: Comyn’s Digest, Execution, D. 1:4 Coke, 71, a: 1 Bulstrode, 35: 4 T. Rep. 590.
    But independent of the above position, he insisted, that if the judgment only took effect from the day on which it was actually rendered, still the better title was in Murfree’s heirs. That so far as regarded judgments and other judicial acts, the law knew of no fractions in a day; that a judgment bound from the first minute of the day on which it was rendered, and proof that it was rendered after that time, was inadmissible; he cited 11 Mass. Rep. 204: 3 Wilson, 274: Dyer’s Rep. 245.
    This rule he insisted was inapplicable to acts in pais. That as to the latter, the presumption was, the act was done during such period of the day as was customary or ordinary in transactions between individuals; and that from these rules it followed as a necessary consequence, that the title of the lessors of the plaintiff, was superior to that of Carmack.
    
      Carmack, for himself and Williams, ’
    (the defendants . . . ,, , , . . . m error.) The questions presented by the record in. this case, seem to be,
    1. Does the judgment in the name of Lucy Hickman against Oliver Williams, which is dated the 28th day of January, 1825, relate to the 17th day of the same month, that being the first day of the term, at which it was given, so as to be a lien on the lands of the defendant from that day.
    2. If the judgment does not have such relation, but commences as a lien only from the 28th day of January, the time of its rendition, did it vest a superior and better title in William H. Murfree, who purchased the land in controversy at sheiiff’s sale under said judgment, than was vested in me by a mortgage which was executed by Oliver Williams on the same dáy.
    It is admitted, that before the statute of 27 Car. II, a judgment operated as a lien on the lands of the debtor from the first day of the term of the court at which it was rendered. This lien, it will be recollected, did not exist at common law, but is derived from the statute of Westm. 2, ch. 18, which first subjected real estate to the payment of'debts. Before this statute, a creditor could have satisfaction only out of the goods and chattels, and present profits of the lands of his debtor. The land itself was secured not only against judgments and executions, but the feudal principles prohibiting the alienation of it in any manner whatever, it could by no possibility become encumbered with the debts of the owner. After the advantages of commerce began to be felt, and an extension of credit became necessary, in the thirteenth year of Edward I. the writ of elegit was given by statute. From an examination, which it will be necessaryTor me to make in another part of my argument, I think it will appear that the lien derived from the statute of elegit against the lands of the debtor, is co-extensive with the judgment, that the lien thus acquired, did not relate to a day anterior to the judgment, but commenced with the J *> ° 1 . ... judgment and ended with it. Another thing which I will here state, and which I know will not be denied, is this: At common law, judgments generally related to the first day of the term, not for the purpose of binding the lands of the debtor, for by the common law a judgment was not a lien, but for every lawful purpose the judgments of the whole term were considered as records of the first day of the term. Consequently, so soon as the courts in the construction of the statute of elegit, declared that the judgment-should be a lien on the lands of the defendant, the common law intendment, that the judgment was a record of the first day of the term, necessarily fixed the commencement of the lien on that day. The statute giving the elegit, did not fix the lien on the first day of the term; but that statute giving the lien in connection with the common law, which presumed the judgment to have been rendered on the first day of the term, fixed the commencement of the lien on that day. It seems, therefore, that the common law, by which the judgment relates to the first day of the term, and the statute of elegit by which it became a lien, are two very distinct things. I mention this for the purpose of bringing before the court what I conceive a very necessary division of this part of the subject.
    1. Has the common law intendment, that all records are of the first day of the term, as it existed anterior to, and independently of the statute giving the elegit, been altered by any statute of the State of Tennessee, or by any act of the British parliament now in force in this State? If I succeed in showing that the common law has in this respect been altered, that judgments are in this country, - to be regarded as records only from the day on which they are in truth rendered, I then propose to show,
    
      2. That there is nothing in the statute of elegit abstracted from all considerations of the common law, which necessarily fixes the commencement of the hen by iudg- " _ , , , J J O ment on the first day of the term; that the hen, as to the time of its operation, is co-extensive with, and does not relate to a time anterior to the judgment.
    If I establish these two positions, it follows of course, that the lien created by the judgment in favor of Lucy Hickman against Oliver Williams, cannot by relation, nor by any other means, reach a day prior to the 28th January, 1825, the day on which it was rendered, andón which my title was vested by mortgage.
    That we may not be misled by the language which is frequently held in the books on this subject, I will undertake to show that by common law, judgments were said to relate to the first day of the term, not by fiction of law, but because they were presumed to have been rendered on that day. Relation is an abstract operation of law. An act which is done, or rights which are vested at this instant, are by relation, by mere operation of law, united to some transaction which happened at a time anterior, so as to make the whole one and the same transaction, bearing date from the time anterior to its completion. Presumption is a rule of evidence submitted to the jury, and sometimes to the court, to direct them in the investigation of facts. Relation is a fiction of law. Fictions have been adopted by the law, for the purpose of attaching to a transaction legal conseqences which are necessary to the justice of the case, and which cannot be attained by regarding the truth. The truth is, therefore, irrelevant in every case in which the law has resorted to fiction. I will illustrate the truth of this assertion by giving a few examples. In the action of trover, the plaintiff alleges that he lost the thing in controversy, and that the defendant found it, &c. On the trial, it is not material for the defendant to show the truth in opposition to this statement, as an answer to the plaintiff’s demand. In a declaration on a written contract, it is sometimes necessary to state as a venue, “at New-Orleans, to
    
      wit, at Nashville, m the county of Davidson. The . ' . . J , ... deten dant cannot answer this statement on the trial, by proving that the city of New-Orleans is not in Nashville. So on the trial of an action of ejectment, it is not material for either party to prove whether Richard Roe did, or did not, with force and arms eject John Doe, because the legal consequences do not depend on the truth of that fact. So in every case known to the law to which the doctrine of fictions is applied; the truth cannot be regarded in opposition to the fiction. A presumption may be defined to be an inference of the existence of a relevant fact, which is unknown, from facts and circumstances already known. Presumptions are resorted to for the purpose of ascertaining the truth when relevant. Fictions are resorted to for the purpose of evading the consequences of the truth, thereby making the truth irrelevant. If I am right in this distinction, judgments at common law were not considered records of the first day of the term, both by presumption and relation in its technical sense. I now affirm and undertake to prove, that by the common law, judgments did not relate to the first day of the term by fiction.
    Before the statute of 29 Car. II. it was the practice of the courts of Westminster to entitle their judgments, and in fact, all records, as of the term generally. They were not dated otherwise than by stating the time and year they were entered. This is shown by the 14th section of that statute, which says, “that any judge or officer of any of his majesty’s courts of Westminster, that shall sign any judgments, shall at the signing of the same, set down the day of the month and the year of his so doing upon the paper book, docket or record, which he shall sign.” 2 Bac. Abr. 731. This statute was made for the protection of purchasers, who acquired titles to the lands of the debtor, between the first day of the term and the time the judgment was in truth rendered. And whilst legislating upon this subject, it was found necessary to make it the duty of the judge or other officer to set down upon the record the day of the month and year of his signing the same. If it had been the custom of the English courts to date their judgments at the time of signing them, it would have been futile in the extreme, to have appropriated a whole section of this statute to provide for a date to such records; for in England, the custom of the court, the course of the court, as it is called, is as much a law ás if specially provided for by legislative enactment. From this, I think nothing can be more evident, than that before the statute of 29 Car. II, judgments were not dated, but were entered as records of the term generally. This circumstance taken in connection with the manner .in which the effect and validity of records were tried, will perhaps account for the relation of judgments to the first day of the term. ££A record,” we are told by lord Coke, ££is a memorial or monument of so high a nature as to import in itself absolute verity; and it has this sovereign privilege, it can be tried only by itself.” Hence it is, that no averment, the proof of which depends on parol, can be received against the effect and validity of a record, or else the manner of trial would necessarily have to be altered; instead of being tried by itself, it must have to be tried by a jury. But records were not dated, and whenever it became necessary for the sake of certainty to fix a date to them, the averment that they were entered on a particular day, could not be received, because the proof of that averment depended upon parol: It therefore became necessary for the courts to resort to the doctrine of presumptions to establish the date of a transaction which, from the very nature of existing circumstances, could not be shown by parol proof.
    This may be answered by saying that although the record may be entitled of the term generally, yet that the allegation that it was not'entered until after the first day, might, according to the general rule, be received, because it does not contradict, but is consistent with the record; and consequently that the presumption for which I have been contending, did not necessarily arise. But I think it will appear from an examination of the books, that this rule was not known to the early writers on English law; at least, if it was known to them, its application was by no means well understood. Records seem to have been of higher authority in ancient than in modern times. The cases, hotvever, which I shall have to cite so frequently for other purposes, show most conclusively that the allegation, that the record was not entered until after the first day of the term, could never be received when the proof of it depended on parol, and that it could always be received, when it could be proved by the record itself. It will be seen that this was the law in all manner of judicial proceedings, such as judgments, declarations, orders of court, &c.
    Again: the whole term was in law considered as one day, and that was the day on which the term commenced. The reason of this is, perhaps, to be found in the fact which I have already stated, that no particular day of the term was noticed on the record. It was dated Easter, Hillary, or Trinity term, 1832, as the case may be. Now as the day on which each of these terms commenced its session, is directed by a general law, of which the court must take judicial notice, and no subsequent day of the term appearing on the record, the first is the only day of the whole term known to the court, and consequently the only day on which any of its proceedings, which were dated of the term generally, could be presumed to have been entered. To be a little plainer, if possible, suppose this to be Hillary term, and that you are now examining a record dated thus, “Easter term, 1832,” you would know that Easter term commenced on Wednesday fortnight after Easter day, because the law, which is the highest evidence known to any court, says that it commenced on that day. But it is not known, nor can it be known at this time, whether Easter term continued one or two or three days or three weeks; that being a fact which does not appear on the face of the record, and which cannot- be proved by parol for the purpose of fixing a date to any part of the proceédings. The inevitable consequence is,. that the first is the only day of the whole term, known to the court by such evidence as can be regarded in giving a certain date to any part of the record, which is entitled of the term generally. It seems, therefore, that instead of the judgments relating by fiction of law, it was proved to be a record of the first day of' the term by such evidence exhibited on the face of the record itself, as authorized the presumption that it was on that day rendered. This, I think, accounts for the relation of judgments at common law without the aid of fiction.
    If I am right in the conclusion, that from circumstances which existed at common law, judgments were necessarily presumed to have been rendered on the first day of the term, it is impossible that they could have related to that day by fiction of law. When a transaction relates by fiction, it must be understood to reach a time anterior to that at which the transaction is shown to have happened. If then the record itself exhibited such evidence as proved by presumption of law that a judgment was entered on the first day of the term, it would be absurd to say that it related to that day by fiction, because the day to which it relates is not anterior to that on which the evidence shows it to have been rendered. With the same propriety it might be said, that a man begins to live by relation on the first day of his existence, or that he died by relation on the day on which he ceased to exist. But I have already shown .that it could not have been both by relation and presumption that judgments were at common law regarded as records of the first day of the term. At least, it is not likely that things so “divergent in their aims,” should concur in the production of the same ef-feet; the one being a means used for the purpose of as- ... ,, ,,. 1 certammg the truth, the other being resorted to as a means of evading the truth, avowedly for the purpose of giving to the transaction other consequences than those which would legitimately flow from it by regarding the truth.
    Although it may not be found in any of the books in plain terms, that at common law judgments were presumed to have been rendered on the first day of the term, in other words, that they did not by fiction of law relate to that day, yet I think that the doctrine on this subject, as stated in any book, will very naturally suggest that conclusion. All judicial proceedings, from the declaration up to the judgment, are on the same footing, and are said to relate to the first day of the term when they are entitled of the term generally. Cro. Car. 102: Starkie’s Ev. 1400. But when there is a special .memorandum on the declaration showing the day on which it was in truth filed, it cannot relate of a day prior to that mentioned by the special memorandum. And even where the declaration is entitled of the term generally, if it can be shown from any circumstance appearing on some other part of the record, and not upon the face of the declaration itself, that it. was not filed before some certain day in the term, as for instance, when the original was not returned before the third or fourth return day in the term, it will prevent the relation of the declaration to a time anterior to that day. Chitty’s Plead. 263: Bull. N. P. 137: Tidd’s Prac. 294: 3 Burr. 1241: 2 Salk. 9: 1 Term, 116. So in the case of judgments, they related to the first day of the term. But if any thing appeared on the face of the record, which showed that the judgment was not entered until some time after the first day of the term, the relation was prevented. We have a legislative recognition of this rule of the common law in the recital of the statute 29 Car. II, (2Bac. Abr. 731,) which says, “That it has been found mischievous that judgments in the king’s court in Westminster, do many times relate to the first day of the term whereof they are entered, or to the day of the return of the original, or filing the bail, and bind the defendant’s lands from that time.” Suppose the original to be returned on the fourth return day and judgment by .default is taken at the same term: It would seem that the judgment could not relate further back than the fourth return day which is generally about the twenty second day of the term; and if it be a bailable case, the relation could reach only the fourth day after the return of the original. The reason of this is obvious. Before the original is returned, there is no suit in court; and if it be a bailable case, the plaintiff cannot by the rules 'of court enter a judgment until after the day for filing special bail is passed. The record itself, therefore, shows that the judgment was not entered on the first day of the term, and for that reason it does not relate to that day. The statute just referred to, shows this to have been the common law. Again: it is said in 2 Tidd, 840, that “The judgment, by general intendment of law has relation to the first day of the term whereof it is entered, unless any thing appear on the record, showing that it cannot have that relation.” But in the case of Swan vs. Broome, (3 Burr. 1595,) Lord Mansfield sustains the doctrine which-1 have extracted from the statute 29 Charles II, and the position which I have just quoted from 2 Tidd with such clearness and force that it would be presumption in me to offer a reason in support of it. And in 3 Salk. 212, the same doctrine is laid down in the following words: “A judgment shall have relation to the first day of the term, as if it was given on that very day, unless there is a memorandum to the contrary, as where there is a continuance of the cause until another day in the term. ” Now, if I am right as to the doctrine of legal fictions, that they are never introduced into the law unless it be done for the purpose of attaching to a transaction consequences which are necessary in advancement of justice, and which cannot be attained by regarding the truth, the truth must in all cases to which fiction is applicable, be irrelevant. If . . , , , , . , then, a judgment relates to the first day oi the term by fiction of law, the truth, as to the time at which it was in fact rendered, is irrelevant: its legal consequences do not depend upon the truth of that fact; but the judgment must take effect to all intents and purposes from the first day of the term by relation. But the cases which I have just cited show that this is not the law. It seems that the time the declaration is filed or the judgment rendered, is always relevant when it can be shown by legal evidence, that is, evidence appearing of record. These cases, instead of regarding the truth as irrelevant, which is a necessary consequence of fiction, show that the fiction itself, if indeedit is one, is disregarded as soon as it is detected by the ascertainment of the truth. If the truth as to thetimeoftherenditionofthejudgmentisrelevant, asmost certainly it is, this relation of the judgment to the first day cannot be by fiction of law; for if it be a fiction, it is one in which the truth is relevant, which is an unparalleled absurdity. As the relation of the judgment to the first day of the term is defeated by legal evidence showing that the judgment was not signed on that day, it would seem that this relation, instead of being a fiction, is only prima facie evidence of the truth of a fact, which is regarded as true only until it is shown to be untrue.
    That the relation of a judgment to the first day of the term by fiction of law is contrary to every principle to be found in any book respecting legal fictions, is too obvious to require much argument. The case of Butler and Baker, 3 Co. R,ep. 25, contains all the doctrine concerning relations. Lord Coke says that it is a notable case on this subject, and he tells the reader that it was argued twenty one several times in Sergeants-Inn and Exchequer-chamber, and solemnly resolved by all the justices of England and Barons of the Exchequer, after many conferences between themselves. Among other principles recognized in the determination of this case, the following are State^t0 be °f universal application: “As relations shall extend only to the same thing and to one and the same intent, s0 they shall extend only between the same parlies? and shall never be strained to the prejudice of a third person who is not a party or privy to the act.” And “in destruction of a lawful estate vested, the law will never make any fiction.” To say then that the judges of England, from the days of Edward I. to the 29th year of Car. II. did uniformly decide that judgments related to the first day of the term by fiction of law, and that too in destruction of the vested rights of purchasers, not privies nor parties to the judgment, is at once to say that during that period they were not acquainted with the principles of law. But if they decided, what I think I have shown to have been their meaning, that a judgment was considered a record of the first day of the term because it was necessarily presumed to have been on that day given,, they can be. accused of no violation of principle, but only of an indefinite, perhaps an improper application of the term relation.
    If the other side should deem this view of the subject of sufficient importance to merit a reply, I am aware that they may find an argument against it in the statute 29 Car.. II, ch. 2, and in the construction which it-has received. This statute makes it the duty of the judge or other officer who shall sign any judgments, to enter on the margin of the roll or record, the time of signing the same. It then provides that, as against purchasers, they shall, in consideration of law, be judgments only from the time of signing them. As this statute was made for the protection of purchasers only, the courts have, in their construction of it, determined that judgments shall yet relate, notwithstanding the time they entered appears on the record, provided the interest of purchasers is not affected by the relation. For all purposes except to avoid an intermediate sale, a judgment relates to the first day of the term, as it did before the statute. From this construction it may be argued, that if before the statute, it was by presumption of law that a judgment was considered as a record of the first day of the term, so soon as the statute, by fixing a date to the record, introduced proof positive as to the time of rendering the judgment, the presumption would necessarily be destroyed. A presumption stands only until the contrary is shown. But the truth appearing on the face of the record by the date, since the statute does not prevent the relation in any case where the interest of a purchaser is not concerned, they will say for that reason this relation must be by fiction, the truth being disregarded.
    This reasoning seems to be conclusive. It is therefore admitted, that in England, since the statute 29 Car. II, in all cases in which judgments are considered as records of the first day of the term, they do relate by fiction; but’’the inference, which from this may be urged in argument by the other side, that they must have related by fiction before the statute, is by no means admitted. Expressio unius est exclusio alterius, is a rule of construction particularly applicable to this statute; which, let It be remembered, was made for the protection of purchasers only. To effect that object alone, it was necessary that every judgment should be dated. Let us sup: pose for the present, (what I shall after a little establish by argument,) that the date thus fixed to the record, produced an entire alteration of the common law, in regard to the relation of judgments. It was necessary that this alteration should be narrowed down so as to embrace the object of the statute, and nothing more. Those cases which were not within its meaning, were to be excluded from its operation; and this could be done only by resorting to fiction, by disregarding the date. By this means alone, the consequences of the date could be avoided in those cases in which purchasers were not concerned.— This view of the construction of the statute is strengthened from the fact, that purchasers are the only third persons w^° cou^ be injured by the relation of judgments to the first day of the term, and they were protected by 0ne of the express provisions of the statute. As between the parties to the judgment, the plaintiff and defendant, injustice could never be done by its relation, and in many cases justice would be advanced by it.
    If I now prove that an entire alteration of the common law, in regard to the relation of judgments, was produced by the statute 29 Car. II, ch. 2, it thence follows, that before that time, this relation could not have been by fiction of law, or else the alteration introduced by the statute could not be counteracted by a fictitious relation since. The same means which are destroyed by the alteration, cannot afterwards exist to produce the same effect. Ces-sante causa cessat et effectus.
    
    ' A short review of some of the cases which I have already cited, will, I think, be sufficient to show that the common law, in regard to the relation of judgments, upon whatever principles it might have been, did undergo an entire alteration by the statute 29 Car. II. These cases show that some circumstances might intervene during the prosecution of a suit, which would prevent the relation of the judgment to the first day of the term. Let us now see what were those circumstances, and compare their nature and tendency with those of the date which was given by the statute, and mark the result of the comparison. See the recital of the statute 29 Car. II, ch. 2, 2 Bac. Abr. 731. If the return of the original being upon a day in the term, was a circumstance regarded by law to prevent the relation of the judgment to a time anterior to that day, “because it cannot be supposed or intended tliat the judgment was given before that day,” will not a date fixed to the judgment by the statute 29 Car. II, produce the same effect for the same reason? See Swan vs, Broome, 3 Burr. Rep. If the Pope’s bull, saying that his majesty’s courts at Westminster shall not transact business on the first day of the term, being on Sunday, is regarded by law as a circumstance tending to show that a judgment could not- have been rendered on the first day, and for that reason preventing the relation, will not a date fixed to the judgment by legislative enactment, produce the same effect? See 3 Salk. Rep. 212. If a mere order of court, a memorandum (which was perhaps made by accident) showing that the cause was continued until some day in the term, will prevent this relation as to all persons, and as to every purpose, will not a date which is made a necessary part of the record under the sanction of an act of the British Parliament, the supreme law of the land, for the same reason, prevent this relation? For these reasons, I think it must be apparent that the law, as to the relation of the judgment, as it stood before the statute ' 29 Car. II, was altered by that statute, net only as to purchasers, but as to all persons, and as to every purpose. But what was that alteration? Why, before the statute 29 Car. II, judgments were presumed to have been rendered on the first day of the term. But that statute fixing a date to every judgment, that presumption was necessarily destroyed. That statute was made for the protection of purchasers only. There were other cases which did not come within its professed object, that were most inevitably placed within its operation. It was deemed important for the purposes of justice, as well as a just construction of the act of the legislature, that as between the parties themselves, the legal consequences of judgments should commence at the same time since the statute, that they did before it was passed. With this object in view, the courts, in their construction of the statute, in order to avoid the consequences of the date, resorted to the doctrine of fictions. What was effected by a mere rule of evidence, by a presumption before the statute, is since effected by relation in its legal sense.
    Because the consequences are the same since the statute 29 Car. II, in those cases which are not within its express provisions, that they were before, let us not for that reason suppose that the means which have operated in the production of those consequences, both before and since the statute, are the same, and thereby confound what was presumption before the statute, with what is in truth relation by fiction of law since. It often happens that things most strikingly dissimilar, have some one common attribute; are alike in something. The author of Hudibras gives an apt illustration of this remark, where he compares the sun when about rising to a “lobster boiled.” Now it is not likely that the sun will ever be taken for a -boiled lobster on account of the one attribute in which it has been discovered they most strikingly resemble. Let us not then commit as great an error by confounding relation considered as a fiction of law, with presumption, merely because relation since the statute, for one purpose alone, is attended with the same consequences which before resulted from presumption. Two things were never more dissimilar, more opposite in their natures, as I have already shown. Another thing which I will remark in this part of my argument is this: that since the statute 29 Car. II, the doctrine of fiction has never been applied to this subject, except for the single purpose of avoiding the consequences of the date. Whenever it can be shown from any thing except the date appearing on the face of the record, that the judgment could not have been rendered on the first day, it does not relate. The cases in 3 Burr, and 3 Salk, having been determined since the statute, prove the truth of this proposition. Now, inasmuch as the date fixed on the record has as strong a tendency to destroy the presumption that the judgment was entered before the day it bears date, as any of the circumstances which are mentioned in either of the cases to which I have referred, it may fairly be inferred, that if before the statute a date had, by any accident, been fixed to the record, the relation would have been prevented, upon the same principle which governs those cases, viz: “because it could not be supposed or intended that the judgment was signed before that day,” its date. The date since the statute, has the same effect in destroying the presumption; but the consequences of the truth appearing by the date, are avoided by a fiction, by relation in its technical sense. From this I think we may conclude, that the application of the doctrine of fiction to this subject in England, is an incident of the statute 29 Car. II; that it has grown out of the construction of that statute, for the sole purpose of preventing its operation from embracing those cases which are not within its express provision.
    If I am right in this view of the construction of the statute 29 Car. II, I am willing to give the gentlemen on the other side choice of the alternative; that statute either is, or is not, in force in this country. If it is in force here, there is an end to all further argument on this part of the subject, because the case now before the court is within its express provision. If it is not in force here, none of its incidents, no principle established by its construction, is in force here, and for that reason the relation of a judgment by fiction of law for the purpose of avoiding the consequences of a date is not the law of this country. But the law as it stood before that statute, as it may have been altered or modified by our own statutes, is tho law by which we are now to be governed.
    I have so conclusively shown, that at common law, and even up to the time of the statute of 29 Car. II, that it was by presumption of law, and not by fiction that judgments were considered as records of the first day of the term, that I think I may now assume it as a first principle, as an axiom upon which to found the few remarks which I have yet to make on this part of the subject.
    A presumption stands until the contrary is shown, stabit presumptio donee in contrariam probeiur. If it were necessary to sustain this principle by authority, or to illustrate its practical application, it could not be done more successfully than by turning your attention again to the case to which I have so often referred for other purposes. I have already shown that all legal proceedings are on the same looting m regard to this presumption or relation. A declaration entitled of the term generally, is presumed to have been filed on the first day of the term. How may the contrary of this presumption be shown? Let the books answer. It may be shown by anything appearing of record which shows conclusively that it was not until after the first day that the declaration was filed. It may be shown by a special memorandum of the time of filing it; by the bill appearing to have been returned on some day after the first day, or by the bail appearing to have been filed on a subsequent day. Chitty’s PI. 263: Bull. N. P. 137: 3 Burr, 1241: 3 Salk. 9: 1 Term. Bep. 116: Tidd, 294-5. So in the case of judgments. A judgment is presumed to have been rendered on the first day of the term, for the same reason, because it is entitled of the term generally..- This presumption stands only until the contrary is shown. How may the contrary be shown? As in the case of declarations, not by parol, but by any thing appearing of record which shows that the judgment was not rendered until after the first day. Tidd, 285. The return of the original appearing to have been after the first day; the filing of bail above appearing to have been on some subsequent day of the term, (2 Bac. Abr. 731:) a memorandum showing that the cause was continued until a certain day in the term, (3 Salk. 212:) an existing law prohibiting the court from transacting business'on a certain day, (3 Burr. 1596:) have all been regarded as evidence showing the contrary of this presumption. With this plain and practical illustration of the principle, stabit presumpiio, &c. before us, can we err in applying it to the case now under discussion? Suppose that there is no statute of this State requiring judgments to be dated; it will be admitted that there is none saying that they shall not be dated; the courts therefore would have a discretion either to date them or not. This judgment of Hickman vs. Williams, the court has in the exercise of that discretion thought proper to date. If the cases to which I have so often referred be law, we have an unerring criterion for determining as to the effect of this date, admitting it to be merely an act of the court, no law expressly requiring it. A memorandum showing that the cause was continued until a certain day in the term, destroys the presumption that the judgment was rendered on the first day. A date to the judgment must for the same reason have the same effect. The date is an act of the court, and so is the memorandum of continuance; the tendency of the one to destroy this presumption by showing the contrary, is, in all*respects, equal to that of the other. From this, I infer that the court will not presume the judgment of Hickman vs. Williams to have been entered before the 28th January, 1825, the time it bears date.
    But if an act of the court fixing a date to the judgment has the effect of destroying the presumption, that it was entered on a day prior to that on which it bears date, what would be the effect of an act of the Legislature making the date a necessary part of the record? It seems to me that it would place the conclusion for which I am contending out of the reach of controversy. I admit that I have been unable to find any law of this State which says in plain .terms that judgments shall be dated. But the act of 1809, ch. 49, sec. 20, says, “that the minutes of the respective courts in this State, for each preceding day of every session, shall be read in open court on the morning of the succeeding day, and signed by the judges presiding, &c. This is made a law of the county court by the act of 1817, ch. 47, sec. 9. The Legislature of this State, it would therefore seem, instead of directing the records of our courts to be kept, as was once the practice of England, so as to exhibit the appearance of having all been entered on the same day,' here discloses an intention in' language too plain to be misunderstood, that the records of each day of the term shall be kept separate and apart from the records of every other day. There is no plan by which this could be so well effected as by fixing a date to the entries of each day. I think, therefore, that I am warranted in the assertion, that our law makes the date a necessary part of the record.
    There is this remarkable circumstance to distinguish the relation of a judgment from the doctrine of relations-when applied to any other subject. In all cases of relation by fiction of law, some one of the consequences of the transaction relates, and not the transaction itself. For instance, when a conviction or attainder is said to relate to the time the crime was committed; by this we understand that nothing more than the forfeiture which is an incident of the conviction or attainder relates, and not the whole transaction the conviction or attainder with all its consequences. This is the case of all relations by fiction of law. But it is not so with the relation of a judgment. It is not the lien of the judgment alone that relates, but tire judgment itself; for the relation of the judgment was a rule of the common law long before the statute of ele-git, and of course, before the lien was an incident of the judgment. The whole judgment with all its incidents relates, or else none of it relates.
    I think I have shown conclusively in the course of this argument, that a judgment regarded as a whole thing, cannot under our existing laws, relate to any day prior to that on which it bears date. And perhaps I have said' enough to sustain this further position, that no one or more of its incidents or consequences can relate, unless the whole judgment relates. I will, however, take up one of its incidents, and the only one which-it is important to consider on the present occasion, I mean the lien, and see whether it as a part abstracted from the whole, can relate.
    There is nothing in the statute of elegit, abstract from c11 considerations of the common law, that necessarily fixes the commencement of the lien by judgment, on the first day of the term; the Hen as to the time of its operation is co-extensive with, and does not relate to a time anterior to the judgment. This position can be sustained by a short examination of the statute which may be found in 2 Institutes, 394. It merely says, “when a debt is recovered or acknowledged in the King’s court, or damages awarded, it shall be from henceforth in the election of him that sueth for such debt or damages, to have a writ of fieri facias unto the sheriff for to levy the debt of the lands and goods; or that the sheriff shall deliver to him all the chattels of the debtor, (saving only his oxen and beasts of the plough,) and the one half of the land, until the debt be levied upon a reasonable price or extent. ” There is nothing in the words of this statute which makes the judgment a lien; it could have that effect only by a very liberal construction. And when it is remarked that this statute is in opposition to the policy of the common law, which prohibited the alienation of lands, it may well be matter of surprise, that it should have received so liberal a construction to extend not only beyond the words, but perhaps beyond any thing that was ever in the mind that conceived it. At least, it would seem that the court extended its liberality of construction far enough, when it said that the judgment should be a lien. But to say that the lien should commence before the judgment, would be extending it unreasonably far. Surely, the courts have never said that this statute made the lis pendens a mere chose in action, a lien on the lands of the debtor. But if before the statute of 29 Car. II, the lien uniformly commenced on the first day of the term, they must have intended that construction; because even at common law, and after the statute of elegit was passed, all judgments were not supposed to have been given on the first day of the term. The preamble to the statute of 29 Car. II, ch. 2, and many causes which I have cited, prove the truth of this assertion. If then, in those cases in which the relation of the judgment was prevented by evidence appearing on the record, the lien did necessarily take effect on the first day of the term, it must of course have commenced before the judgment, and consequently at a time when there was nothing upon which to found it, except the pending suit. But this has never been the law. Lord Coke, in commenting on that clause of the statute of elegit which says liberet si medietatem terae debitoris> uses this language: “this is to be understood of the half of such lands as the defendant had at the time of the judgment given. ” 2 Institutes, 395:7 Co. Rep. 131: Co. Litt. 102: so in Cro. Jac. 451. These authorities show that the time the judgment was given as shown from the record, has always been the criterion for determining as to the commencement of the lien. Should there yet be any doubt on this subject, the writ of elegit is decisive. Co. Litt. 115, b. says, “one of the'best arguments and proofs inlaw is drawn from the right entries or course of pleading;” and therefore, Little-ton here saith, it is proved by pleading, &c. as if pleading was ipsius legis viva vox. The form of the writ which was used before the statute of 29 Car. II, is to be found in Cro. Car. 162. This writ directs the sheriff to deliver to the plaintiff all the goods and chattels and half of the lands of the debtor which he had on the day of the “judgment rendered, or at any time after.” Ideo tibi praceipimus, quod bona et catalla, et medietatem ter arum, &c. qua habuit die judicii praedicti rediti deliberan fa-cias,” are the words of the writ. If it had been intended that the lien should commence uniformly on the first day of the term, regardless of the time to which the judgment relates, (for sometimes it only relates to the return of the original,) a writ of a different form must have been provided. Instead of using the language which is found in the writ, it would have directed the sheriff to deliver to the plaintiff half of the lands, &c. of the debtor, which he had “on the first day of the term.” A writ m this form would have been necessary to have embraced those cases in which the relation of the judgment was prevented by evidence appearing on the face of the record. I think I may be permitted to conclude, that there is nothing in the statute of elegit, nor in the decisions on it, which makes the lien commence necessarily on the first day of the term. But that, on the contrary, the time the judgment was rendered, as shown by the record, has always been material in determining as to the time the lien should commence.
    The only other question to which I have to ask the attention of the court is this: If the judgment of Hickman vs. Williams does not relate to the first day of the term, so as to be a lien on the lands of the defendant from that day, but takes effect only from the 28th day of January, 1825, the day it bears date, did it vest a superior and better title in W. H. Murfree, who purchased the land'in controversy at sheriff’s sale under said judgment, than was vested in me by a mortgage which was executed by Oliver Williams on the same day ?
    This question can readily be determined by showing that the lien by mortgage is of a higher nature than that created by the judgment. The judgment binds the land as the property of the debtor; the mortgage binds it as the property, of the mortgagee; the estate being divested from the mortgagor to whom nothing remains but an equity of redemption. The judgment, on the contrary, operates no divestiture of property, till carried into actual execution; and the debtor has the right of disposing of his lands as completely after the judgment as before, except that the purchaser must take it subject to the general lien created by the prior judgment. That lien vests no specific estate in the creditor, and is nothing more than an outstanding claim (which may or may not be enforced) to have the judgment satisfied out of the estate. Let the judgment be in any manner released or satisfied, and the ben is ipso facto dissolved; the estate of the vendee is instantly discharged and exonerated from the claim, without any act whatever proceeding from the creditor of the vendor to the vendee. The mortgagee trusts the mortgagor upon the faith of a contract which specifically vests in him the estate of the debtor, as a collateral security for the debt; the judgment creditor on the contrary, stands upon his legal rights, has trusted nothing to the faith of contracts, and has gained nothing by contract; his advantage, whatever it may be, is gained by sheer coercion upon his debtor, and by mere operation of law. From these obvious distinctions itmust surely appear, that a title acquired by purchase under a judgment, cannot, defeat a right, at that time vested by mortgage, duly registered, and which was executed at least as early as the commencement of the lien by judgment. In other words, a mortgage conveys a superior and better title than that thus acquired, unless it be shown that the lien created by the judgment,' is prior in point of time to the execution of the mortgage.
   Green, J.

delivered the opinion of the court.

It is not necessary in order to the decision of this case, tó discuss all the principles advanced in the very lucid and able argument for the defendants, which has been submitted to the court. In England, by a legal fiction, a judgment relates back to the first day of the term, because the term is considered as but one day, and there is nothing of record to "show that a judgment has beenren? dered at a subsequent period to the day of the commencement of the term. In general, it is not permitted a party to aver that a judgment was signed after the first day of the .term, because the fact is not relevant. The legal consequences do not depend upon the truth of the fact on what day the judgment was completed. But where third persons are interested, and the truth of the fact thereby becomes relevant, and the legal consequen-ees do depend upon it, the true day on which it was signed may be averred. 3 Barn, and Cress. 317: 3 Dane, 516. Fictions of law are used for the ends of justice; 4‘where-ever, therefore, a fiction of law works injustice, and the facts, which by fiction are supposed to exist, are inconsistent with the real facts, a court of law ought to look to the real facts.” For, as Lord Mansfield says, (2 Bur. 950,) “the court would not endure that a mere form or fiction of law, introduced for the sake of justice, should work a wrong contrary to the real truth and substance of the thing.” If, for the attainment of justice, the true day may be averred in opposition to the presumption that a judgment was entered on the first day of the term, why may not the true moment of the day be averred and proved in opposition to the presumption that the judgment was rendered the first moment of the day? There can be no reason why this may not be done. Although the law does not in general allow the fraction of a day, yet the authorities show that it is admissible where it is necessary to distinguish, to answer the real ends of justice. 7 Com. Dig. 398, and authorities there cited. The rule in England that the judgment relates to the first day of the term, does not apply here. Our acts of assembly have constituted a term of our courts as consisting of days.

By the act of 1809, ch. 49, sec. 20, it is provided, “that the minutes of the respective courts within this State, for each preceding -day of every session, shall be read in open court on the morning of the succeeding day, except on the last day of the term, when the minutes shall be read at the risé of the court, and shall be signed by the judge or judges presiding in said courts.”

By the act of 1817, ch. 48, this provision is made to apply expressly to the county courts. These acts divide the term of a court into days, and require that the record should furnish evidence of what was done on each particular day. The practice of the courts goes farther, and |n the record of their proceedings shows that the court adjourned the preceding day to a particular hour of the succeeding one. Thus, not only making the day on which a particular judgment may be rendered certain, but rendering it also certain that until after a particular hour of the day, no.judgment could have been 'entered up. In England, in the absense of record evidence to the contrary, by a fiction of law, a judgment is supposed to have been signed on the first day; but if the record shows that such could not have been the fact, as if by an order of court, the cause had been continued to a particular day in the term, this fiction is repelled by record evidence to the contrary, and in such case the judgment does not relate to the first day of the term. So here; the records of the court contain evidence of the particular day on which a judgment is rendered, and does away the necessity for any fiction, by showing what the truth of the factis. In the case before the court, the" judgment, and the mortgage under which the defendant Carmack claims, are of the same date, the 28th Jan. 1825. In general, as has been said, the law does notallow of the fraction of a day, and the day of the date of the judgment would include the whole day. So also would the day of the date of Carmack’s deed. Coke’s Rep. 5, part 3. Here, therefore, for the ends of justice, the day may be divided, and either party might have proved that his lien was in fact first in point-of time. But the plaintiff below did not introduce any proof on the subject. Resting, as the case did, altogether on the daté of the judgment and of the deed, the circuit court was right in telling the jury that the titles being equal, they must find for the defendant. The deed is fair, was proved and registered in due time, and created a specific lien on the property in dispute, in opposition to the general lien created by the judgment, and there is no reason why the lien of the judgment should be considered superior. If the period of the rendition of the judgment, or the execution of the deed, had been proved to be in point of time anterior to the other, that would have given the preference; but as there was no proof on that point, we think there is no error in the judgment, and order that it be affirmed. .

Judgment affirmed.  