dissenting.
The question involved in this case is, whether two mortgages, executed on the same day, though not at the same time of that day, shall share equally, or pro rata, in the distribution of the proceeds of the sale of the mortgaged property, or whether the mortgage first executed and delivered on the same day, has the prior lien upon the mortgaged property. Bean’s mortgage was executed and delivered about two hours before the mortgage to Carr was executed and delivered by Johnson, the mortgagor. The 1956th section of the Code declares: “ If there be several mortgages of equal date, and one forecloses, the Court will control the proceeds of the sale to distribute to the several mortgagees according to their claims.” Here Russell, the assignee of Bean, claims, that his mortgage was prior in point of time, and therefore, has priority of right to the proceeds of the mortgaged property. In my judgment, he has such priority of right. The 1982d section of the Code declares: “ Where different, persons hold a lien on the same property, and both declared to be of the same dignity, then, the oldest lien shall have the preference.” If Bean’s mortgage had been exe*465cuted and delivered on the 23d of April, 1867, and Carr’s mortgage had been executed and delivered on the 24th, then, it is conceded, that Bean’s mortgage would have been prior in point of time. The principle is, that the oldest lien shall have the preference. Why should not that principle control ánd be applicable to the oldest lien created on the same day, as well as to liens created on different days? See Brown vs. Hartford Insurance Company, 3d Day’s Cases, 65; Halbird vs. Burr, 17th Conn. Rep., 559, 560; Combe vs. Pitt, 3d Burrow’s Rep., 1434. The Code, it is true, declares, that if the mortgages are of equal date, the Court will control the proceeds of the sale to distribute to the several mortgagees, not according to the date of their respective mortgages, but according to their claims, and Russell, the assignee of Bean, the mortgagee in this case, claims, and has, in point of fact, the oldest lien, and is entitled to. have the preference; therefore I dissent from the judgment of the Court.