
    *Jackson and Buel v. Horace Luce and others.
    A judgment entered by confession during the term of the court of common pleas, operates as alien upon the land of the judgment debtor, from the first day of the term, and is to be preferred to the lien of a mortgage, executed before, but not recorded till after the. commencement of the term.
    This is a case in chancery, reserved in Ashtabula county, for the purpose of settling the priority of liens of certain judgment creditors and mortgagees.
    There is no controversy as to the facts, which are as follows:
    On March 26, 1832, Horace Luce and John P. Eastman, two of the defendants, executed a mortgage deed to the State of Ohio, to secure the payment of $1,000 and interest thereon, borrowed of the fund commissioners of the county of Ashtabula, under the act of March 28, 1837, for the distribution of the surplus revenue.
    At the April term of the court of common pleas of said county, 1842, said term commencing on the 10th day of the month, complainants recovered a judgment against Horace Luce, Joseph Eastman, and Almon E. Eastman, for $1,474.37, with costs. This judgment was obtained by confession, and actually entered on April 20, 1842. One other judgment was entered at the same term of the court, against the same defendants, and the creditors in said judgment are made defendants. These creditors are Ralph Clark, Sidney Smith, and Enos P. Clarke,
    On April 7, 1842, Horace Luce and Joseph P. Eastman, with their wives, executed a mortgage to Horace H. Eastman, who is also made defendant, to secure the payment of $2,300.
    This mortgage was left at the recorder’s office for record, on the 12th, and actually recorded-on the 14th of April.
    The prayer of the bill is for general relief.
    *J. R. Giddings and Perkins & Osborn, for complainants :
    We rely mainly upon the statutes declaring the extent of judgment liens, and providing for the acknowledging and recording of deeds.
    Judgments operate as a lien from the first day of the term in which they are rendered ; mortgages, from the date of their record. Swan’s Stat. 468, 267, 268.
    All the authorities in this state, which bear upon the point, sustain this construction of the statutes. Magee v. Beatty, 8 Ohio, 396 ; Stansell v. Roberts et al., 13 Ohio, 148 ; Lessee of Sturgis v. Bank of Cleveland, 1 West. Law Lib. 209 ; Urbana Bank v. Baldwin, 3 Ohio, 65 ; Roads v. Symmes et al., 1 Ohio, 63.
    Wade & Ranney, for respondent, H. H. Eastman:
    The question to be settled in this case is, who has the preferable lien, the judgment or the mortgage ereditor ? We contend that the mortgage is to be preferred :
    1. Because an unrecorded mortgage is preferred in equity, when of an older date, to a judgment lien.
    This precise question has never been decided in any reported case ; but questions have been, which, in principle, settle the proposition as we have stated it. 1 Pet. 386 ; Bank of Muskingum v. Carpenter’s Adm’rs, 7 Ohio, 21, pt. 1; Manly v. Hunt, 1 Ohio, 257 ; Barr v. Hatch, 3 Ohio, 527 ; Patterson v. Johnson, 7 Ohio, 225, pt. 1; Norton v. Beaver, 5 Ohio, 178; Lake v. Doud, 10 Ohio; 2 Binn. 48; 1 Johns. Ch. 300; 3 Cranch, 155 ; 3 Hen. & Munf. 232.
    2. This mortgage being executed and delivered before the term of the court commenced, and being recorded before the judgment was rendered, when so recorded, relates back to the execution, and takes effect from that time by the ^doctrine of reíation. Jackson v. McCall, 3 Cow. 80; Vin. Abr., tit. Relation, 290; Foster’s Lessee v. Dugan, 8 Ohio, 87; Boyd’s Lessee v. Longworth, 11 Ohio, 235; Scribner’s Lessee v. Lockwood, 9 Ohio, 184; McGuire v. Ely, Wright, 520; Jackson v. Bull, 2 Caine’s Cas. 300; Heath v. Ross, 12 Johns. 140; Jackson v. Dickinson, 15 Ib. 315; Nichols v. Chapman, 9 Wend. 452; Griswold v. Stewart, 4 Conn. 457; Bennet v. Davis, 3 Cow. 69; Griswold v. Bard, 4 Johns. 230 ; 1 Cow. 740; 3 Ib. 75; Tooley v. Dibble, 2 Hill, 643; 4 Kent’s. Com. 457; 3 Atk. 646.
    3. A judgment rendered by confession can not so relate back to the first day of the term as to cut out the rights of third persons, bona fide acquired between the first day of the term and the-rendition of the judgment. Urbana Bank v. Baldwin, 3 Ohio, 63 ; Taylor v. Ranney, 4 Hill, 620; Jackson v. Benedict, 13 Johns. 533.,
    Giddings, Perkins & Osborn, in reply:
    All the cases referred to by defendant’s counsel, in their argu-ment, under the first head, depended upon general chancery principles, and belong to a distinct class from those referred to by us. They were all based upon the well-known principles of chancery jurisdiction, viz., fraud, trust, and accident. None of them depended upon the construction oí our statutes, and in this respect are clearly distinguishable from those in 3, 8, and 13 Ohio, cited by us.
    The doctrine of relation will not avail the defendant. The doctrine of relation exists only between th.e immediate parties to the , transaction, and is intended to prevent, not to promote injustice. Hood v. Brown, 2 Ohio, 357; 4 Kent’s Com. 338; Barr v. Hatch, 3 Ohio, 527.
    *The statute leaves no room for the doctrine of relation in cases of this desci’iption.
    Neither is the third point well taken by the defendant’s counsel. The lien, and the commencement of the lien, are fixed by statute. Judgment liens are the creatures of the statute; they take effect by force of statute, and not by fiction. Riddle v. Bryan, 5 Ohio, 48; McCormick v. Alexander, 2 Ohio, 65.
   Hitchcock, J.

There does not appear to be any controversy in this case with respect to the moi’tgago to the State of Ohio. That was prior, in point of time, to the judgments, and to the mortgage to Eastman, and as no objection is x’aised to it, wo suppose it was regularly recorded. The real controversy is between the complainants, as judgment creditors, and Horace H. Eastman, the second mortgagee. All the judgments and mortgages ai’e liens upon the same lands.

The facts with respect to these two parties are, that the mortgage was executed on the 7th of Apx’il, but was not entered for record until the 12th. A term of the court of common pleas commenced on the 10th of April; and on the 20th, but dux-ing the same term of the court, judgment was obtained by the complainant upon a cognovit. If the judgment operated as a lien from the first day of the term, this lien is preferable to the lien of the mortgage, because elder in point of time than the date of the delivery of the mortgage for record. That it does so operate there can be no doubt, unless we entirely disregard the statute. By a former-statute, judgments of this character did not operate as liens until the date of their actual entry. But, for some reason, the legislature thought proper to change this provision, and by the law, as ' it now stands, all judgments are placed upon the same footing, and the lands of the judgment debtor are bound from the first day of the term in which such judgments are entered. This point being settled, this case is precisely like the case of Mayham v. B. Coombs and ^others, decided at the present term. We believe the decision in that case to be correct, and must adhere to it. As between the judgments and the secon'd mortgage, the former must have the preference, and a decree may be taken accordingly.

Wood, C. J., being sick, did not unite in the examination and decision of this case.  