
    *Foster M. Follett v. Francis Hall and others.
    A mortgage handed in for record on the first day of the term of court, hut before the court actually convenes, will prevail against the lien of a judgment recovered at the same term.
    This is a bill of review, reserved in the county of Erie.
    The material facts are these: Hall and wife executed a mortgage upon a certain lot of ground in Sandusky city, to Oran Follett, who assigned the same to complainant, to secure the payment of two promissory notes given for the payment of $698. The mortgage bears date June 2, 1841, and was presented for record on June 3, 1841, at eight o’clock a. m.
    At the June term of the court of common pleas within and for the county of Erie, Farwell and Higgins, administrators of J. W. Ransom, recovered a judgment against Hall, for something over $800, and levied execution upon the lot mortgaged to Follett. The term of the court at which this judgment was rendered, convened on the same day, at ten o’clock a. m., on which said mortgage was presented for record. The Supreme Court held that the judgment had the preferable lien. This is assigned for error, among others, and is the only one considered by the court.
    Parish & Saddler, for complainants, submitted the following authorities:
    2 Stark. Ev. 787, and notes; 3 Burr. 1434; Wright, 325; 7 Ohio, 69 ; 3 Bl. Com. 43 ; 3 Burr. 1243; 1 Cow. 592 ; Cowp. 714; 4 Greenl. 298 ; Story on Bills, 329; Ib. on Pr. Notes, 236 ; 1 Pick. 485; 7 J. J. Marsh. 202; 1 Blackf. 392; 9 Cranch, 104; 4 New Hamp. 267; 6 Tenn. 224; 3 Ib. 623; 3 United States Dig. 518; 6 Cow. 659; 11 Mass. 204; 15 Ib. 193; Daw Rep. Jan. 1844, p. 392.
    *L. S. Beecher, for the defendants, presented the following authorities:
    8 Ohio, 396; 14 Ib. 428, 514; 1 Ohio Cond. 254; 6 Ohio, 156; 14 Ib. 514; 5 Mass. 197.
   Read, J.

The simple question in this case is, which had the

preferable lien, the judgment or mortgage. It is contended that the judgment lien, taking effect from the first day of the term, includes the entire day, upon the principle that a day in law is not divisible, and is therefore older and superior to that of the mortgage. The statute provides that the lands and tenements of the debtor shall be bound for the satisfaction of any judgment against the debtor from the first day of the term at which judgment shall be rendered. Mortgages take effect, and have preference, from the time the same are delivered to the recorder of the proper county, to be by him entered on record. If the judgment lien attaches from midnight, on the day the term of court commenced, it is older and better than that of the mortgage; but if the judgment lien attaches only from the time the court actually convened its session on the first day of its term, then the mortgage lien is older and must prevail. The word day, in law, embraces the entire day; but that a day in law is not divisible, is a mere fiction, only observed for the purposes of justice, and never adhered to when it would work mischief. When rights attach from the order of courts, the event must be regarded, and not the name of that fraction of time called a day. From what time does the statute intend the judgment lien to attach? From the first day of the term, would exclude the first day, and the judgment lien would only attach with the commencement of the second day. If this construction were permitted, it would allow a lien to attach superior to that of the judgment, even after judgment had been rendered. If a debtor, in the forepart of the first day of the term, should have judgment rendered against him, he might dispose of his whole lands and tenements, in the afterpart of the day, so as to put them beyond the reach of execution. This may *be done now, after suit brought, if before the term at which judgment shall be rendered. The object of the law undoubtedly was, to prevent men from disposing of their lands and tenements, after judgment was rendered against them, as the temptation would be stronger to do so than before judgment, and as most litigants have some hopes of success up to that time. But if the lien only attached from the time of the judgment, in several suits against the same person, that first in order upon the docket would have the advantage. It is, therefore, provided that all judgments rendered at the same term, shall attach as liens from the same time. This puts them upon an equality. The term, in this respect, is regarded as one day. Looking, then, to the object of the law, wo make the word from inclusive, which in its usual signification is exclusive. It is necessary to give the word from this interpretation, in order that judgment liens should attach from the beginning of the term. The object of the legislature undoubtedly was, that all judgments should attach as liens from the beginning of the term at which they were rendered. It can not be presumed that judgments were intended to attach as'liens before the term commenced. At what time, then, does a term of court begin ? It can not be said that a term of court commences before the judges authorized to hold court have convened. There can be no term of court, unless there is a court. To fix a time by law to hold court, does not make a court. If judgments attach only as liens from the beginning of the term of court, they attach from the time on the first day of the term at which the court was duly organized and opened. A majority of the court hold this to be the true construction of tho statute, giving judgment liens. Upon this construction, the mortgage is the older, and therefore the better lien. It is not pretended that any injustice is worked by this construction, because the equity of the mortgage is equal to that of the judgment, and being older, is in fact better; but that it violates the express words of the statute. But if we ^looked to the words only, and not the object of the statute, it-might well be held that the judgment lien only commenced with the second day of the term, the word “/rom” excluding the first. If wo may include a day which the words of the statute exclude, to carry out the object of the law, wo see no reason why we may not exclude a part of a day to effect the same object, especially if right and justice seem to require it.

It may be said, that to permit parties to dispose of, or incumber their property on tho day court begins, but before it actually convenes,, opens a door to fraud. This may now be done up to tho first day, and the construction we give to the statute affords very little further opportunity. But it must be remembered, that a fraudulent disposition of property will not avail against a judgment. With the subject of fraud we have now nothing to do. We are merely attempting to fix tho time at which judgment liens attach under the statute. A judgment lien is not better, and should not prevail against other liens, upon the ground that it is of superior dignity. There is no equity which requires that we should endeavor to extend to it an advantage over other liens honestly acquired. In the present case, there is an honest effort among creditors to secure their debts. Tho one takes a mortgage before the day on which court commences, and hands it in for record on the first day of the term, but before court commences; the other, some days after, but during the same term, recovers a judgment. Now, it is just as equitable that the one should be paid as the other. The mortgage is first in point of timo, and therefore better in equity and law, unless a hard statutory provision deprives it of this advantage. It is claimed that the statute deprives the mortgagee of his rights, and confers them upon the judgment creditor, not upon any principle of equity, but in adherence to the maxim, that the law knows no fractions of a day. But it is equally true, that fiction in law should never be permitted to work a wrong, and the construction %e have given to the statute seems to be warranted by its object and intent, and certainly conforms to the principles of justice and right.

The demurrer is overruled, and the decree heretofore rendered in this case reversed.

Birchard, C. J.,

dissenting. This case presents the naked question, whether a judgment rendered in a cause duly pending, shall operate as a lien on real estate, situate within the county, from the first day of the term at which it is rendered, including the first day, as fixed by law.

It is with regret that I find myself differing from the majority of the court at any time. Their opinions demand my respect. Yet however anxious I may be to come to any particular conclusion, I can not do it as a matter of choice.

I believe the decision just announced is unsound. The late learned chief judge who was with me when the case was originally decided, was also at the last session of this court after ful] argument, sincerely and advisedly of the same opinion. In stating the reasons which have operated upon my mind, I desire it to be understood that the doctrine is admitted that parts of days, may, in a proper case, be noticed for the prevention of injustice, nor do I understand that there is any difference between me and my brethren, as to the true meaning of the statute relating to mortgages.

We all hold, since the decision in Stansell v. Roberts, that a mortgage has no effect; that it is like an unexecuted contract, until it is filed with the recorder of the county for record. Such is the effect of the statute relating to mortgages. Again, we all agree that since the enactment of the statute, fixing the liens of judgmeats at law (many years older than the mortgage act), the courts and the bar have considered that the judgment lien took effect so as to include the first day of the term at which the judgment may have been rendered; that interest has over been computed to and from *that day. We know of no conflicting decision and there is no disagreement on this point.

Now with these facts and premises, upon which there is no division of opinion, I can not conceive that the lien of this judgment is junior to the lion of the mortgage. It does seem to follow that the first is some eight hours older than the latter. Both are legal liens. Both stand upon their respective legal rights, and both depend upon positive enactments which no court ought to gainsay.

This is not a case where a mere legal fiction is attempted to be interposed to defeat a prior equitj1'. It is a case where an older legal right is given to a bona fide judgment by a positive statute in express terms, and to which all the cases, cited to prove that a day may be divided to prevent a legal fiction from working injustice, are either wholly inapplicable, or they prove, by strong analogy, the unsoundness of the application which has just been made of them.

Adjudicated cases have been cited also to prove that a lien attaching at a particular hour of a day, shall be preferred to a lion attaching of the day generally. Admitting the soundness of these decisions and applying correctly the principle doducible from them, and the mortgage lien must yield, because the judgment lien took effect on the first hour of the term of the court, and the mortgage on the eighth hour of the same term. These cases sustain my views.

The terms of the courts are matters of law, of which all the people of the state are bound to take notice. To learn when they commence, the statute only need be looked to. The legislature intended to leave no room for dispute here. But the hour when the court may have actually commenced its session is very uncertain. It may have been at one o’clock in the morning, or at eleven o’clock at night, or at any intermediate hour. In many counties the records will only show that the terms of the courts commenced on the days prescribed by law, without any mention of the hour of the day at which the judges and officers convened. Is it so, then, that the party taking a judgment, at a term when no *court was convened until the afternoon of the first day, or perhaps the second or third day of the term, is liable to be defeated by deeds and contracts entered into after the time fixed by statute for the beginning of the term ? Can the judgment creditor make no levy with safety upon the real estate of his creditor, without first iaquiring of the clerk, constable, juror, or bystander, at what hour the sheriff may have proclaimed the opening of the court? Must he litigate this uncertain fact with any and every mortgagee, vendee, and grantee of the judgment debtor, and prevail in settling the disputed hour in his favor, or submit to have his creditor’s real estate swept away from him by a conveyance, mortgago, contract, or other claim entered into at one in the afternoon, because the court did not happen to convene till the hour of two? If a ci’oditor can bo defeated on execution in this way under our law, it is a new thing, and contrary to all our former impressions and all the practice of members of the bar for many years. This question is of too serious import to be passed over lightly, and without a dissent. It should not be treated as a legal fiction in the way of justice.

The opportunities of embarrassing creditors in the legal pursuit of their honest demands, have heretofore been sufficiently numerous. The means of committing fraud have ever been sufficiently ample. I can not but believe that a new door for gross fraud, and difficult of detection, will be needlessly opened by the rule now established, and that it will be hereafter somewhat improved, to the prejudice of the morals, the peace, and of the best interests of the public generally, as well as to the injury of individual judgment creditors. For these, and the reasons alluded to by counsel, and for other reasons that might be given, it is out of my power to concur in reversing the decree of this court, which was made upon the circuit, and made, too, deliberately, after full argument.

It may be hard for this mortgagee to lose the benefit of his security. But a hard case is a poor excuse for establishing a bad precedent. It is merely saving one man from misfortune, by visiting evils upon the whole community.

*1 do not desire to dwell long upon this subject. Yet there is one other view of the case which has force with me.» The entire usage of the state to the present time has been in accordance with the views that I have stated.

Whore this change of construction (for it is in effect that) of an old statute, will stop, or to what extent it may operate to defeat titles acquired under sales upon execution, no one can easily foresee. That its effect will be disastrous in some cases is not to be doubted. To guard against any disturbance of rights fairly acquired, and in accordance with the long-continued and general practice of those learned in the law, I would adhere to the old rules with tenacity, and yield them only when forced by reasons such as could not be resisted.  