The opinion of the Court was delivered by
Gibson, C. J.The rule of the common law, which rejects fractions of a day in determining the priority of liens, was restricted in Metzler v. Kilgore to judgments; and the reasons given for it show that it could not be otherwise. Judgments of the same date were held to start from the same point of time, not only because the common law principle of relation to the first day of the term had been altered no further than to let in record proof of the true day of rendition and not of the hour and minute, but because the date of a judgment being matter of record and triable only by itself, could not in general be established, falsified or explained by inferior evidence. Judgments of the same date were therefore admitted to come in together by force of a necessity, which did no injustice in putting them on a footing as to mere technical advantages resting on no principle of actual justice, but on an accidental interpretation of the statute of Westminster the second. But the precise time of delivering a conveyance, like the precise time of delivering a fieri facias, being provable by evidence in pais, it follows that the necessities of justice, like the necessities of the law (which required us to exclude inferior evidence in Metzler v. Kilgore, require us in this instance to admit it. The principle, in that case, brought in the judgments together; but in this, would exclude the assignment entirely. It is unnecessary to say that such a result would be contrary to natural right. It would be impossible to put a judgment and a conveyance on a footing of equality, not only because it would be impracticable to determine the relative proportions coming to each, but because they are inconsistent and irreconcilable. The one is a security which incumbers the property in exclusion of everything subsequent to it: the other, a conveyance excluding everything to which it is anterior; and they are therefore incapable of standing together. To affect land *308in the hands of a purchaser, a judgment must have been not merely simultaneous with, but anterior to the conveyance; and as an indispensable measure of justice, the precise time at which the judgment was entered must be shown by less than record proof.
The argument that a judgment whose date in contemplation of law covers the whole day, is necessarily anterior to a conveyance at an intermediate point of the same day, is too subtle to be solid. The conclusion attempted would not be borne out by the most fanciful effect of the legal fiction; for it might be possible to deliver a conveyance so exactly at the stroke of twelve as to leave no room for an intervening lapse of any appreciable portion of time. But justice is not to be dispensed on principles so artificial, where it can be avoided. When judgments bear the same date, they must necessarily come in together; but between a judgment and a conveyance, actual priority must be shown like any other fact.
The remaining point was agreed in Livingston v. Bell, (3 Watts 198) by sustaining an assignment in trust to pay debts, though it included unreleasing creditors, and reserved a trust of the surplus for the debtor. The reason is that the property is not less accessible to those creditors when a second time in the hands of the debtor, than it was before he parted with it. It is enough, however, that the point is no longer open.
Judgment affirmed.