By the Court.
Lumpkin, J.delivering the opinion.
Amongst other questions, it has been discussed, whether the taking of the mortgage in this case by Barnes from Wade was a waiver of the vendor’s lien. The cases are not entirely harmonious on this point. Lord Eldon said, it did not appear to him a violent conclusion, as between vendor and vendee, notwithstanding the mortgage, that the lien should subsist. 15 Ves. Jr. 341, and see Cowell vs. Simpson, 16 Ves. Jr. 278—280. He added: “it must not be undertood, that a mortgage taken is to be considered as conclusive ground for the inference that a lien was not intended; and the question must be, whether, under the circumstances of the particular case, the inference arises ?” Mackreth vs. Symmons, 15 Ves. Jr. 348 349. The American cases, seem to establish a contrary doctrine; and to hold that the lien will be waived, whenever any distinct security is taken, as by mortgage on the land itself, for the whole or a part of the purchase money. 1 White and Tudor’s Leading Cases, and the authorities there cited in note; Taylor vs. Adams, Gilmer, 329; Little vs. Brown, 2 Leigh, 353.
Taking the averments in the bill to be true in the case before us, that “simultaneous with the execution of the notes and deed, to fulfil, secure and carry out, to said Barnes, a lien on the ten acres of land for the purchase money, the said James W. Wade executed a mortgage deed” &c., I say and infer from this allegation, that Barnes considered that the mortgage gave him greater security for his money than the implied vendor’s lien, as in ordinary cases it does, and that he looked to that pledge for payment.
*410The question then is, does it protect him and his assignees from the pre-existing judgment in favor of Scott, Carhart & Co. against Wade? We think so, most indubitably. It is conceded that the vendor’s lien is protected against an older judgment. If this be true of an implied lien, much more should it be of that which is express.
Chancellor Kent says, “ In one instance a mortgage will have preference over a prior docketed judgment, and that is the case of a sale and conveyance of land and a mortgage taken at the same time, to secure the payment of the purchase money. The deed and the mortgage are considered parts of the same contract and constituting one act; and justice and policy equally require, that no prior judgment against the mortgagee should intervene and attach upon the land during the transitory seizin, to the prejudice of the mortgagee,” Pie adds, “ This sound doctrine is for greater certainty made a statute provision in New York.” 4 Kent 173, 174, 5th. edition.
The act to which the Chancellor refers is one relating to mortgages, passed 9th April 1805, and is considered as declaratory of the common law. Per Spencer, J. 15 John’s Rep. 464. Doubts had arisen concerning it, and the statute was intended to remove those doubts. A fact that has occurred a thousand times and oftener in our own State, as I have taken occasion to remark before. Some well established principle being questioned, to confirm and support it, the Legislature intervenes; and yet those very statutes are relied on and quoted, to prove that such was not the law before! We have some striking examples of this sort at the session of 1855—1856, as I may have occasion to show on some future occasion.
I should be 'gratified to see a similar act passed in this State, and the vendors implied lien abolished altogether.
I have said, that the doctrine in Kent was the doctrine of the common law. The wife’s claim to dower, is an analogous case; and Coke says of this, that a wife shall not be *411endowed of a seizin for an instant. Coke Litt. 31 b. The same principle is recognised in Lord Cromwell’s case, 2 Coke 77. The same point was adjudged in Dixon vs. Harrison, Vaughn 41, andBlackstone draws the distinction clearly. He says,"“ the seizin of the husband for a transitory instant only, when the same act which gives him the' estate conveys it also out of him again, (as whereby fine land is granted to a man and he immediately renders it back by the same fine,) such a seizin will not entitle the wife to dower: for the land was merely in transitu, and never vested in the husband, the grant and render, being one continued act.” He adds, “but if the land abides in him, for the interval of but a single moment it seems the wife shall be endowed thereof.” And to such an extent was this doctrine carried by a jury in Wales, that it was held that where the father and son were both hanged in one cart, the son was supposed to have survived the father by appearing to struggle longest, whereby he became seized of an estate in fee by survivorship, in consequence of which seizin his widow took an estate of dower. Cro. Eliz. 503.
Upon this distinction, I am conttent to rest my judgment in this case. The bargainor sells the land to the bargainee, on condition that he pays the price at the stipulated time; and whether this contract which is one, is contained in the same instrument, as it well may be, or in distinct instruments, executed at the same time, can make no possible difference. Taking the whole transaction together, it is a conditional sale, and the title never did vest in the mortgagor, except incumbered with the debt, to wit, the purchase money. Suppose that Wade, after receiving the deed from Barnes had refused to execute the mortgage, could not the contract have been rescinded ? Unquestionably. Then it took both the instruments to consummate the agreement. It is like a feoffment and defeasance at common law, which is deemed but one conveyance, 2 Bla. Com. 327; Co. Lit. 236 b. Where two instruments are executed at the same time, be*412tween the same parties, relative to the same subject matter, they are to be taken in connection, as forming together, the several parts of one agreement 1 John. Cas. 95. Where a deed is given by the vendor of an estate, who takes back a mortgage to secure the purchase money, at the same time he executes a deed, the deed and mortgage are to be considered as parts of the same contract, as taking effect at the same instant, and as constituting but one act; in the same manner as a deed of defeasance, forms with the principal deed, to which it refers, but one contract, although it be by a distinct and separate instrument. Holbrook vs. Finney. 4 Mass. Rep. 569.
The cases in NewYork are numerous upon the point under discussion, 3 Wend. 233; 1 ib. 164; 6 Cowen 316; 2 Cowen 218; 15 John. 457. ib. 477. And the only dissenting opinion is that of Ch. J. Thompson in Stow vs. Tift, 15 John. 458. And it may be inferred, that he would have concurred in a case like that before us, where it constituted a part of the original agreement that a mortgage was to be given back, and I should unhesitatingly hold with him, that, unless the deed and mortgage were executed in pursuance of a previous agreement to that effect made between the parties, that the judgment lien would attach; because otherwise, during the interval between the deed and the mortgage, the title certainly vested really in the debtor. And it is exactly upon this pivot that this case turns. For if the land abided but for a single moment in Wade, it would be subject to his judgment debts. It does not depend upon the length of duration; the question is — Was it in Wade and out of him, quasi uno flatu, and by one and the same contract ? For if so, he never was substantially seized of the land so as to subject it unconditionally to the judgment lien.
Our opinion, therefore is, that the subsisting judgment against Wade could sell his equity of redemption — Its lien attached on that and nothing else.
Judgment affirmed.