
    Coutts v. Walker.
    June, 1830.
    (Absent Cabell, J.)
    Judgments — Relation.—A judgment has relation to the first day of the term at which it is rendered, and this relation is allowed in equity as well as at law.
    Same — Lien—Equitable Estate. — A judgment creditor has a lien in equity on the equitable estate of the debtor, in like manner as he has a lien at law on his legal estate.
    Same — Same—Same—Case at Bar. — Real estate is vested in a trustee by deed of marriage settlement, in trust to pay the wife an annuity out of the profits, and, subject to the annuity, intrust for a son of the grantor; while the annuitant is yet living, a creditor of the son recovers a judgment against him, and exhibits his bill in chancery, to subject the son’s equitable interest in the estate to the debt; Held, 1. that such an equitable interest cannot be taken in execution at law; 2. that it is bound by the judgment in equity, which will apply it to the satisfaction of the debt; but 3. as the annuitant is yet living. and is not compellable to take a gross sum in satisfaction of the annuity, and as the trustee is to hold the subject and pay the annuity out of the profits, the court of chancery ought not to direct the sale out and out of the debtor’s equitable interest subject to the annuity, but ought only to direct the application of the surplus of profits as they accrue, after paying the annuity, to the debt.
    By deed of marriage settlement, dated the 10th September 1799, between Reuben Coutts, Jane New the intended wife, and Samuel M’Craw and others, trustees, Coutts conveyed to the 'trustees, sundry real estate, consisting of *lots and lands in Richmond and Manchester, with some slaves and other personal property, in trust, that they should hold the same to the use of Coutts till the marriage; and from and after the marriage, in trust to the use of Coutts and his wife, to hold the subject, and apply the rents and profits thereof, to and for their support, and that of Coutts’s children, Lewis, Patrick, Elizabeth, Polly, and Elvira Coutts, and of any children which should be born of the intended marriage; and if Coutts should survive the intended wife, then upon trust to support him out of the rents and profits during his life; and if she should survive him, then to pay her out of the rents and profits, an annuity of £1.50; and after the death of Coutts, to divide the trust subject, as follows, viz. to divide equally between the grantor’s two sons, Lewis and Patrick, the ferry lot in Manchester number 312, the ferry lot in Richmond number 324, the sandy bar and fishery, being 44 acres of land, two islands in James river numbers 313 and 31S, and four lots in Manchester numbers 306,. 307, 308, 309 ; and to divide the residue of the real subject, being a lot in Richmond number 355, and all the personal property, equally between all the above named children of Coutts, and the children, if any, of the intended marriage; and the whole subject was charged with the annuity of £150. provided for the wife, and the trustees were to see that it should be paid her out of the rents and profits, and apportioned and charged equally among and upon the children ; so as to divide the burden justly and equitably among them.
    The marriage took effect. Coutts, the husband, died, leaving his wife Jane him surviving; whereby the children became entitled to the trust property, to be distributed among them according to the provision of the deed of settlement, subject to the annuity to the wife, and the trust provided by the settlement for assuring the payment thereof to her.
    Afterwards, Walker recovered two judgments against Patrick Coutts (the son of Reuben, the grantor in the deed of marriage settlement above mentioned) in the hustings *court of Richmond, for 500 dollars each, with interest and costs: these judgments were rendered upon the confession of Coutts, on the 2nd March 1821, but the quarterly term of the court at which the judgments were so recovered, commenced the 21st February preceding.
    Patrick Coutts, by deed executed in the interval between the commencement of the term and -the day on which Walker’s judgments against him were rendered, namely, on the 28th February 1821 — reciting that Mrs. Coutts had become bound as his surety for a debt of 1661 dollars, the amount of a writ of ca. sa. which had been sued out by R. Burton against him and executed upon him, and that she had incurred sundry other engagements for him as his bail and otherwise, and that he was also indebted to Samuel M’Craw for expenses incurred by him as trustee under the deed of marriage settlement, and for arrearages of the annuity of .£150. thereby provided for Mrs. Coutts — in congideration thereof, conveyed to T. T. Bouldin and D. Roper, trustees, the ferry lot in Manchester number 312, the sandy bar and fishery of 44 acres, the two islands in James river numbers 313 and 315, and the four lots in Manchester numbers 306, 307, 308, 309, being parcel of the subject mentioned and described in the deed of marriage settlement: upon trust, 1. to indemnify Mrs. Coutts against loss by reason of her suretyship for the debt of 1661 dollars due to Burton; 2.'to indemnify her against loss by reason of any other suretyships or engagements by her incurred for the mortgagor; and 3. to pay M’Craw, any balance that might be found due him, for expenses incurred by him as trustee under the marriage settlement, and for arrearages of the annuity of .£150. due Mrs. Coutts.
    And, by another deed, executed on the same 28th February 1821, Patrick Coutts, for the consideration, as expressed on the face of the deed, of 8777 dollars, cash paid, conveyed directly to Mrs. Coutts, all his interest in the lot number 355 in Richmond, which also is parcel of the trust subject mentioned in the marriage settlement.
    *These two deeds of the 28th February 1821, were admitted to record in the office of the hustings court of Richmond, on the same day on which Walker’s judgments against Coutts were rendered in the same court, namely, on the 2nd March 1821.
    Walker sued out executions on his judgments against Coutts, which proved unavailing ; and then he exhibited his bill in the supetiour court of chancery of Richmond, against Patrick Coutts, Jane Coutts, Samuel M’Craw (who was the surviving trustee named in the marriage settlement) and Bouldin and Roper, the trustees in the first mentioned deed of the 28th February 1821; setting forth the facts.as above stated; insisting, that Coutts’s two deeds of the 28th February 1821, were fraudulent in fact as against him; and that, whether fraudulent in fact or not, his judgments related back to the first day of the term of the hustings court at which they were rendered, and thus overreached those conveyances ; and praying, that the subject thereby conveyed, or so much thereof as should suffice for the purpose, might be sold for the satisfaction of the debts due him with interest &c.
    The defendants Patrick Coutts, Jane Coutts, and M’Craw, filed their answers, averring that the deeds of the 28th February 1821, were fair in fact, and claiming the benefit of them; and insisting, that Walker’s judgments, as against them, could not be considered, on the principle of relation, as taking date from the first day of the term of the court at which they were rendered, but that, on the contrary, they took date only from the day they were entered.
    As to the other defendants, the bill was regularly taken pro confesso.
    There was no evidence whatever, touch-, ing the charge of actual fraud alleged in the bill: so that the only questions presented to the chancellor, were, as he stated them, Whether, supposing Patrick Coutts to have only an equitable right in and to the property comprised in the marriage settlement of 1799, and the legal title thereof to be outstanding *in the trustee M’Craw, Walker’s judgments had priority over the two deeds of the 28th February 1821? and if so, Whether they constituted a lien on P. Coutts’s equitable title in the subject? And the chancellor, holding the affirmative on both points, decreed, that the marshal should sell all of Coutts’s interest in the property, at public auction, subject to Mrs. Coutts’s annuity, and bring the proceeds of sale into court, to be applied to the satisfaction of Walker’s demands by future order.
    This court, upon the petition of Mrs. Coutts, allowed her an appeal from the decree.
    S. Taylor and R. G. Scott, for the appellant,
    contended, 1st, That Walker’s judgments constituted no lien on the property in question. For, they said, the lien of a judgment on the real estate of the defendant, arises from the capacity of the creditor to extend it by elegit; and if that capacity to take the subject in execution has never existed, or has determined, the creditor, in the one case, loses the lien he once had, and, in the other, never acquired one at all. Eppes v. Randolph, 2 Call, 186. Now, here the legal estate of the property was in M’Craw, the trustee, under the marriage settlement of 1799, charged with Mrs. Coutts’s annuity of ^1S0. and P. Coutts had only an equitable estate, which could not be extended on an elegit, any more than an equity of redemption which certainly was not extendible. 2 Cruise’s Dig. Tit. IS; Mortgages, ch. 3, ? 22, p. 139; Id. Tit. 14, Estates by Statute Merchant &c., ? 77, p. 72; Scott v. Scholey, 8 East. 467. If Walker had no lien by his judgment, Mrs. Coutts must prevail in ■ equity, since her deed certainly gave her a lien. She had equal equity, and the legal advantage.
    2ndly, That Walker’s judgments did not take date from the first day of the term, but only from the day they were actually rendered. The doctrine of the relation of a judgment to the first day of the term, was manifestly unjust, when carried to the length of giving a posterior judgment apriority over a previous bona fide conveyance; and ought not to be allowed to prevail at law, much less in equity, unless the law imperiously required it in all cases. This whole doctrine of relation was a fiction of the law. The president Pendleton said, in Eppes v. Randolph, that a legal fiction, contrived to support justice, is never to be permitted to do an injury to a third person. So, in 18 Vin. Abr. Relation, K. pi. 4, p. 293, it is laid down, as a general rule, that relation shall not do a wrong to strangers. The only date to the judgment-roll in England being the first day of the term; and thus every judgment of the term having the same date, namely, the first day; the reason was apparent, why judgments títere all related back to the first day of the term, the record, in general, shewing no other date. But this was only the general rule; for if there be any thing on the judgment-roll, as a memorandum or the like, which shews the true date, the principle of relation which dates the judgment from the first day of the term, is not allowed, per Holt, C. J., 3 Salk. 212; Wynne v. W3’nne, 1 Wils. 39; Swann v. Broome, 3 Burr. 1S9S. The general principle, then, of the relation of all judgments to the first day of the term, they said, could not justly obtain in Virginia. For the reason of the general principle in England, was, that there, the whole term, in intendment of law, is but one day, and the record shews but one date, the first day of the term ; so that to hold all the judgments of the term as judgments of the first day, is consistent with and required by the record. But this reason would not hold in Virginia, where, by positive provision of the law, the business is arranged for several days of the term, and the orders and proceedings of each day are drawn up and signed by the judge; where office judgments are declared to be judgments of the last day of the term at which they are confirmed; where the record shews the precise date of every judgment and proceeding; where the law recognizes, and the record shews, a first and a last day and intermediate days of the term: where, consequently, to intend that every judgment of the '"term is a judgment of the first day of it, would contradict the record. They referred to the case of The Mutual Assurance Society v. Stanard, 4 Munf. S39, in which a judgment was held to relate to the first day of the term; but they said the point did not appear to have been argued there, and ought not, therefore, to be considered as settled by that adjudication.
    And, if this doctrine of relation ought to be allowed to prevail at law, in this country, where the reason on which it was founded in England never existed, yet, they contended, it ought not to obtain in equity. Anon. 2 Eq. Ca. Abr. 684, pi. S. The rule was certainly a .very harsh one, and very unjust in its operation, if it could be made to deprive a fair purchaser for valuable consideration actually paid, of the property he has bought.
    3dly, That, supposing Walker’s judgments related back to the first day of the term, overreached the two deeds of the 28th February 1821, under which Mrs. Coutts claimed, and constituted a lien on the subject; a lien resulting from the liability of the subject to extent on an elegit; then Walker’s proper remedy was to take out his elegit, and extend the property; and as he had thus a complete remedy at law, the court of chancery had no jurisdiction of the case. There was no allegation that the profits would have been insufficient to pay the debt.
    4thly, They suggested, that so far as the ■deed of trust of the 28th February 1821, was intended to indemnify Mrs. Coutts for her suretyship for P. Coutts to Burton, who was a judgment creditor, she ought to be placed in the place of Burton, and if his judgment was prior to those of Walker, she ought at least to be allowed a priority over Walker, to the extent of the debt due to Burton.
    Sthly, They said the decree was, in one respect, certainly' erroneous: that the chancellor ought to have directed an inquiry to ascertain, whether the trusts created by the marriage settlement of 1799, had been all executed, and the amount due Mrs. Coutts on account of her annuity; *and if it was found proper to decree any sale of the subject at all, he should have directed the sale of so much thereof as would suffice to satisfy Walker’s demand, instead of selling the whole of P. Coutts’s interest. And the chancellor should have subjected -the property mortgaged by the deed of trust to the satisfaction of Walker’s claims, before he touched that conveyed by the absolute deed to Mrs. Coutts.
    W. F. Wickham and Bacchus for the ap-pellee,
    agreed that P. Coutts’s interest in the subject was only an equitable estate, and such an equity as was not liable to extent under an elegit. But, they said, a judgment creditor acquires a lien in equity on the equitable estate of the debtor, as he acquires a lien at law on a legal estate held by his debtor. Sugd. law vend. ch. 9, l 5, p. 337 ; Haleys v. Williams, 1 Beigh, 140. And this consideration alone was sufficient to sustain the jurisdiction of the court.
    As to the question, Whether in this country a judgment should be held to relate back to the first day of the term at which it was rendered? They said, the affirmative was held by this court, in the case of The Mutual Assurance Society v. Stanard, and could hardly have passed without consideration. It is a settled principle of the common law. 4 Com. Big. Execution, D. 1, p. 246. In Wynne v. Wynne, 1 Wils. 39, the rule was stated in the argument, with the reason of it: “the general intendment of the law is, that every judgment has relation to the first day of the term; the reason is, because the court cannot determine every suitor’s case in one day.” The principle, in truth, is necessary to place the suitors on a fair footing of equality; in other words, to the administration of equal justice. This reason holds here, as well as in England, and in equity as well as at law. JSTeither can any good reason be given for the distinction suggested by the counsel for the appellant, that, although in a court of law, a judgment shall relate back to the first day of the term, and give a lien from that date on a legal estate in *lands held by the debtor; yet, in equity, the judgment shall have no such relation, and its lien on the equitable estate of the debtor shall take date only from the day of the term when the judgment was rendered. If such a distinction should be allowed, and several creditors should recover judgments against the same debtor, at the same term, they would be entitled in equity (though equity always favours of quality) to satisfaction out of their debtor’s estate, in the order of their judgments; that is, according to the accidental arrangement of their causes for trial.
    
      
      Judgments — Relation,—A judgment or decree entered during a term of court relates back to the first day of the term, when — and only when — the cause in which it was rendered was in such a condition on the first day of the term that it could have been tried on that day if it had occupied the first place on a docket. The principal case — which is a leading one on this subject — has often been cited to sustain this rule, than which there is hardly a proposition of law more firmly established. See, citing principal case, Skipwith v. Cunningham, 8 Leigh 272, 278, and foot-note: Withers v. Carter, 4 Gratt. 418, 419; foot-note to Jones v. Myrick, 8 Gratt. 179; Brown v. Hume, 16 Gratt. 465; Brockenbrough v. Brockenbrough, 31 Gratt. 600; Yates v. Robertson, 80 Va. 477; Hockman v. Hockman, 93 Va. 456, 25 S. E. Rep. 534; Dunn v. Renick, 40 W. Va. 360, 22 S. E. Rep. 70; First Nat. Bank v. Huntington Distilling Co., 41 W. Va. 533, 23 S. E. Rep. 793; note to Lane v. Ludlow, 14 Fed. Cas. 1082. And in Womer v. Ravenswood, etc., R. Co., 37 W. Va. 290, 291, 16 S. E. Rep. 489, it is said: “At common law, for certain purposes, the term was considered but one day, and all judgments and decrees entered during the term bore'date as of the first day. In Virginia this legal fiction, though at first combated, because firmly established, and has always prevailed, until, as with us, it has become ingrafted npon the Code of the state. Code Va. 1887, § 3567; Society v. Stanard, 4 Munf. 539; Coutts v. Walker, 2 Leigh 268; Skipwith v. Cunningham, 8 Leigh 271; Withers v. Carter, 4 Gratt. 409: Brockenbrough v. Brockenbrough, 31 Gratt. 599. In the leading case of Coutts v. Walker, 2 Leigh 268, affirming the case of Society v. Stanard. 4 Munf. 539, the point was elaborately argued by counsel of great ability and learning; and the opinion of the court, delivered by Judge Gbeen, contains all the substance of what has since been written on the subject, insomuch that in the latter case of Skipwith v. Cunningham, supra, Judge Tuceeb regretted that the court had allowed a reargument of the question. All the cases, however, from the leading English case of Wynne v. Wynne, 1 Wils. 39, down, recognize as an. exception 'where it appears that the plaintiff's case was notin a condition for a judgment on the first day, if the court had been prepared to hear it, and some further proceeding was indispensably necessary to mature his case for judgment.’ Withers v. Carter, 4 Gratt. 407.”
      See further, monographic note on “Judgments:’1 appended to Smith v. Charlton, 7 Gratt. 425.
    
    
      
      Saine — Lien—Equitable Estate. — At law an equitable interest cannot be extended upon an elegit; but, for that very reason, relief may be had in equity which gives a lien npon it in favour of judgment creditors by analogy to the lien at law upon the legal estate, and, amongst several judgment creditors. adopts the legal rule of priorities according to the order of time. Withers v. Carter, 4 Gratt. 417, citing principal case and Tinsley v. Anderson, 3 Call 329. And, in Findlay v. Toncray, 2 Rob. 377, Baldwin, X.said: “I think there is no reason to doubt that the plaintiff’s decree in October, 1836, was a lien upon the debtor Soule’s equity of redemption under his deed of trust; for though the equity of redemption could not be sold under a ft. fa. and was not extendible, yet the decree constituted an equitable lien thereupon, entitled to priority over subsequent liens by j udgment or otherwise. 1 Sugd. on Vend. 542; Haleys v. Williams, 1 Leigh 140; Coutts c. Walker, 2 Leigh 268.”
      ‘To the point that, although an eqnity of redemption cannot be taken in execution at law, it is, on the general principles of a court of equity, bound by the j udgment in eqnity, as it would have been bound at law; If it had been a legal estate, the principal case is also cited in Micheaux v. Brown, 10 Gratt. 617; Nickell v. Handly, 10 Gratt. 338.
      To the point that an equity of redemption cannot be taken in execution at law, the principal case was cited in First Nat. Bank of Salem v. Anderson, 75 Va. 257.
      See also, citing the principal case, especially in regard to the propositions contained in the last headnote, Nickell v. Handly, 10 Gratt. 341; Mayo v. Carrington, 19 Gratt. 93; Bain v. Buff, 76 Va. 375: French v. Waterman, 79 Va. 625; Tyack v. Berkeley (Va.). 40 S. E. Rep. 907.
      See further, monographic note on "Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
    
    
      
      Ingraham’s Edi. Philadelphia, 1820.
    
   GREEN, J.

The principal question is, Whether Walker’s judgments overreached the deeds under which the appellant claims? This precise question was determined in the affirmative in The Mutual Assurance Society v. Stanard; but it is said, that, in that case, the point passed sub silentio, and without discussion ; and that, although at the common law, the whole term was considered as but one day, and all the judgments therein related to the first day thereof, and overreached all intermediate conveyances of and charges upon the debtor’s lands; yet that was because the time when the judgment was actually rendered, never appeared on the record, all being enrolled as of the term generally, or as of the first day of the term: that in consequence of our statutes, requiring that the proceedings of all our courts shall be signed by the presiding judge, either daily at the adjournment of the court, or the next morning at its sitting, and that all office judgments, not set aside during the term, shall be entered as judgments of the last day of the term, the actual time of the entering of every judgment necessarily appears on the record, and consequently takes away the foundation of that rule of the common law. This general principle of the common law, like many others, is of such remote antiquity, and so long recognized without dispute, that the reasons and policy on which it was founded, are, in a great degree, left to conjecture. One reason is assigned arguendo in the case of Wynne v. Wynne, cited at the bar: that all the suitors whose cases are in such a ^situation as to entitle them to a judgment on the first day of the court, ought to be in the same situation, and none to have any advantagé over another, and as it is impossible for the court to give judgment in all such cases in one day, the only means of putting them upon a footing of equality, is to refer all given in the same term to the first day, and give them the same effect as if they were really so. Another reason may have been to prevent debtors from withdrawing their property from the effect of judgments against them, by alienations made after it was known that in the course of the term a judgment would pass. Whatever was the foundation of the rule, it operated uniformly as between different creditors, and the creditors of and purchasers from the debtor, without any exception, so far as I have been able to discover, until the case of purchasers was provided for by the statute 29 Car. 2, Ch. 3, | 14, which required, that the true date of all judgments should be noted on the margin of the roll, and provided that they should bind, as to purchasers, only from such date. Before that statute, judgments confessed in vacation, under powers of attorney previously given for that purpose, related to the first day of the preceding term, and overreached intermediate aliena-tions. To remedy this mischief, of alloying judgments confessed upon powers of attorney, when no previous suit was depending, to overreach intermediate aliena-tions, was the chief object of the provision of the statute on that subject, as appears by its preamble. An attempt was made to remedy this mischief, partially, before the statute, by the power of the court, in an anonymous case in Sid. 222, in which a judgment, entered in vacation, upon a warrant of attorney given in vacation, was set aside, because, relating to the first day of the preceding term, it would be a great danger to purchasers; although it was insisted, that it might be held to be good against the party, and void as to purchasers, which was denied, and the judgment was set aside, because if it remained and bound the party, it must also bind purchasers from him. The courts in England, always had the *means of ascertaining the dates of all proceedings in the suits depending in them, as appears from the frequent questions which have been made as to the effect of those proceedings. Thus, a statute acknowledged the 22d January, after the first day of the term, was overreached by a judgment on the 23rd. Standford v. Cooper, Het. 72; Cro. Car. 102; Hutt. 95; Garrard v. Norris, Latch, 53. So, in Jenk. 250, cited 18 Vin. Abr. Relation, D. pl. 3, p. 293, a case .is stated, where a fine levied after a statute acknowledged in the same term, overreached the statute. But cases might occur, in which judgments might be rendered during a term, which could not by possibility relate to the first day; as where it appears, that the plaintiff’s case was notin a condition for a judgment on the first day, if the court had been prepared to hear it, and some further proceeding was indispensably necessary to mature his case for judgment. As, in the case of a common recovery, the praecipe being returned to the first day of the term, and the tenant appearing and vouching to warranty, and a summons ad warrantizandum awarded returnable to a future day in the term; if the vouchee die before the return day, the recovery is void; Wynne v. Wynne, 1 Wils. 42. Or, if the return day be Sunday, which is not dies juridicus, and the vouchee dies on that day, and a judgment is afterwards given, it is void, because no judgment could lawfully be given on Sunday. But if the return day had been a juridical day, upon which a valid judgment could have been given, the subsequent judgment would have related to the return (essoign) day, and been good, notwithstanding the death of the vouchee on the return day; Swann v. Broome, 3 Burr. 1596. In these cases, there was an impossibility that the judgments should have been given on the first day of the term, the vouchees not appearing gratis, and upon that impossibility the judgments turned. Tidd’s prec. 376. These are the only adjudged cases I have met with, in which exceptions have been allowed to the general rule; and they are founded upon obviously good reasons, that might very *well apply to all cases, in which it appeared that the plaintiff’s case could not be matured for judgment on the first day of the term. There is a dictum of lord Holt in 3 Salk. 212, repeated by counsel arguendo, and admitted by the court, in Miller v. Bradley, 8 Mod. 190, that the relation does not exist, if there is a memorandum to the contrary; as where there is a continuance of the cause until another day in the same term. But the occasion or circumstances, under which this dictum fell from lord Holt, or the purpose to which it' was applied, is not stated bj Salkeld. It is hardly sufficient to overturn the common law doctrine, applied particularly to the lien of judgments, that the whole-term is in law but one day, and that the first day.

Our legislature, in incorporating into our statutes, such of the english statutes as it thought fit to adopt, and abrogating all others, has omitted the provision <oi the statute 29 Car. 2, in respect to the effect of judgments as to purchasers, probably for this reason, that the chief mischief intended to be remedied by it, the confession of judgments upon warrants of attorney when no previous suit was depending, could not exist here, because our statutes had long prohibited such judgments.

Our statutes directing the daily proceedings of the courts to be signed by the presiding judge or justice, declare the purpose of that requisition to be, to prevent errors in entering up judgments, and can hardly have intended to abrogate, incidentally, the rule of the common law, which considers the whole term as one day. I think, we ought to adhere to the decision in The Mutual Assurance Society v. Stanard.

The interests of P. Coutts, and of the purchasers from him claiming under the deeds of the 28th Eebruary 1821, were purely equitable, the legal title being in the trustee under the marriage settlement of 1799, who held it upon such terms, for the use of the appellant and the others interested in the property, that his right to retain the possession and controul, and to receive the profits of the property, necessarily continued, until the proportions of the persons *entitled thereto, after the death of the grantor, were ascertained, and their due shares of the charge of the annuity payable to the appellant, were also ascertained, and properly charged upon their respective proportions of the property. This was not such a trust as could be taken under our statute subjecting trusts to legal executions; 1 Rev. Code, ch. 99, 4 30, p. 370. That was taken from a similar provision in the statute of frauds of 29 Car. 2, but is more extensive in its operation, including trusts of personal as well as real property, whilst the english statute only embraces trusts of real property ; and our statute binding the trusts to all intents and purposes, as if they were legal estates, from the date of the judgment, whilst the english statute bound them only from the date of the execution. Hunt v. Coles, 1 Com. Rep. 226. But in respect to the quality of the estate there is no difference between the effect of the statutes; and in Rngland, their statute has been held not to extend to an equity of redemption. Plucknet v. Kirk, 1 Vern. 411; Sawley v. Gower, 2 Id. 61; Plunket v. Penson, 2 Atk. 290, Sudg. law vend. 337, nor to a trust to sell and pay debts, Sudg. 339, and, a fortiori, not to such a trust as this, not for the debtor only, but for him and another entitled paramount to him.

But although this equity of P. Coutts could not be taken in execution at law, it was, upon the general principles of a court of equity, bound in equity, as it would have been bound at law, if it had been a legal title; and the judgment creditor has a right to insist upon the execution of the trust for the satisfaction of his judgments, precisely as the debtor would have had a right to have it executed for his own benefit, if there had been no judgment. Thu a a judgment creditor has a right to redeem a mortgage, or any other incumbrance. And amongst incumbrancers, where all having nothing but equities, and none the legal title, their equities being equal, they are entitled to satisfaction according to the priority of their incumbrances in point of time, upon the maxim qui prior est in tempore, potior est in jure. Churchill v. Grove, Nels. *Ch. Rep. 89; 1 Ch. Ca. 35; 2 Ch. Rep. 180; Mackreath v. Symmonds, 15 Ves. 353; Haleys v. Williams, 1 Leigh, 140.

It only remains to inquire, whether, admitting that judgments relate to the first day of the term, and overreach intermediate conveyances at law, in cases where they can be executed without the aid of a court' of equity, the same rule ought to be applied to the case of a judgment creditor, who is under the necessity of resorting to a court of equity for its aid? It is said, that relations are not favoured in equity, and never allowed to operate to the prejudice of third persons. It is true, that fictions of law operating to the prejudice of third persons, are less favoured in courts of equity than of law; yet the same maxim, that relations ought not in general to be allowed to prejudice third persons, prevails at law, but it was never applied there to restrain the operation of a judgment upon the debtor’s property, in favour of a purchaser, until that was done by statute. And a court of equity, considering a judgment as operating a lien in equity upon the equitable rights of the debtor, as it would operate upon them at law if they were legal, seems to have followed the law in all its consequences; unless in cases of purchasers of the equity together with the legal estate, without notice of the judgment; in which case, the equity being equal, and the purchaser having the advantage of the legal title, a court of equity leaves the parties to their legal rights. I think the judgment overreached the conveyances in equity, as they would at law, if the estate of P. Coutts in the property in question, had been legal.

But' that did not authorise the court to sell P. Coutts’s interest in the property, out and out, subject to the annuity, as was directed by the chancellor’s decree in this case. It is true, that there being two contemporary judgments, the whole of his interest was bound; a moiety by each: and, if there had been a previous mortgage or other incumbrance, under which the creditors entitled to them could have had the property sold, the appellee could have insisted upon such sale, *and the satisfaction of the prior incumbrances out of the proceeds, and of his judgment out of the surplus, that being the effect of his right to redeem the prior incumbrances. But the annuity charged in this case, upon the property, not only did not charge it so as to subject it to sale, being payable out of the profits of the property only, but was in its nature irredeemable, for the annuitant could not be compelled to take a gross sum in lieu of the annuity. The only course, therefore, left for the court, was to decree that the trustee M’Craw, or a receiver appointed by the court, if that should appear to be proper, should take possession of the whole property, and receive the rents and profits thereof, and out of the net proceeds, first pay Mrs. Coutts her annuity of 500 dollars as it shall accrue, and the arrears thereof if any; next pay whatever may be found justly due to the trustee M’Craw, if any thing, for his fees, commissions and necessary expenditures as trustee under the marriage settlement of 1799, not by force of the deed of trust of the 28th February 1821, but of his original rights under the deed of 1799; then, dividing the surplus according to the rights of the parties entitled under the deed of 1799, pay the proportion thereof ascertained to belong to P. Coutts, to the appellee Walker, from time to time, until his judgments with interest and costs, and his costs in this suit, shall be fully satisfied; and, lastly, the residue to the parties who may be entitled thereto. And to this end, all persons entitled to claim any interest in the property under the deed of 1799, should be made parties.

In the deed of trust for the benefit of the appellant, one of the purposes is stated to be, to indemnify her against a bond executed by her with P. Coutts, and as his surety, to Burton, for the amount of an execution of ca. sa. in his favour against P. Coutts, and which had been executed. And it is suggested that the lien of the decree upon which the ca. sa. issued, and which had precedence of Walker’s judgments, should be considered as still subsisting as to her, and that she should, by substitution to Burton’s rights, have the ^benefit of it as against the appel-lee. But no such claim is set up in the bill; and if it were, I do not think it could be supported. The very act by which she became bound as surety, destroyed, and was intended to destroy, the lien of the decree, and from that moment the plaintiff could take no further execution upon it, or enforce it in any other way. It is like the case of a surety engaging as such, upon condition of the creditor’s releasing a lien upon the debtor’s property, and such a release executed contemporarily with the instrument by which the surety becomes bound. This is not at all like the case of Fox v. Rootes (decided in this court, Dec. 15, 1828, MS). There a ca. sa. was executed upon a decree against an administrator, who swore out of jail surrendering nothing: the surety in the administration bond paid the debt, and procured an assignment of the decree, and was substituted to the original lien of the decree against other creditors, who had a deed of trust of a subsequent date upon the debtor’s land, before he swore out, but that very deed of trust provided for the satisfaction of the decree, together with other debts: and the court held, that the decree creditor ought not to lose his original preference over the deed of trust, by his unavailing effort to procure satisfaction out of other property of the debtor, and thus to benefit the other creditors provided for by that deed. No such reason exists in this case, for reviving in equity, the lien of a judgment or decree extinct at law, and barred by matter of record, and that at the instance and with the privity óf the surety, and the intended consequence of the very act of becoming surety.  