By the Court —
Atwateb, J.— The deed from Pairo to Baker of the premises in dispute, had no witnesses, and the objection has been raised upon the argument that nothing passed by that instrument, and that the title still remains in Pairo. In the view taken by the Court of this case, it seems unnecessary to examine this objection. Both parties claim title-through Pairo, and under Baker. The pleadings of both parties recognize the legal title in Baker, nor does there seem to have been any question raised in the Court below as to his title. The contest between the parties is for Baker’s title of interest whatever the same may be; the respective right of the parties thereto has been the question acted upon by the-Judge before whom the cause was tried, and is the only one in fact upon which the decision of this Court seems desirable or important.
*409Tbe deed and mortgage'bear different dates, but the finding of the Court shows that they were delivered at the same time, and that the deed was recorded fifteen minutes ..previous to the record of the mortgage. The instruments take effect from the time of delivery, and the question is, where a deed is executed for land, and a mortgage at the' same time taken back by the grantor, to secure the purchase money, will a prior judgment against the mortgagor take precedence of the mortgage as a lien upon the premises ? 'The Court below held, we think correctly, that the mortgage lien was prior to that of the judgment.
Such we understand to be the rule as settled in England, and in several of the States at least of this country. It is based upon the ground that the deed and mortgage are considered as parts of the same contract, and constituting one-act, and in the eye of the law there is no moment of time ■ in the transfer when the lien of the judgment could gain preference of the mortgage. Whether or not this reasoning be strictly and logically correct, it is obvious, as remarked by Justice Kent, that “ justice and policy equally require that no prior judgment against the mortgagor should intervene, and attach upon the land during the transitory seizin, to the prejudice of the mortgagee.” 4 Kent's Com., 174. This principle has been recognized in numerous cases, among which maybe cited, Holbrook vs. Finney, 4 Mass., 566; Clark vs. Munroe, 14 Mass., 351; Stowe vs. Tift, 15 John., 457; id, 477; Talman vs. Farley, 1 Barb. S. C. R., 280; Haywood vs. Nooney, 8 Barb., 643; Kieristed vs. Avery, 4 Paige, 9; Ransom vs. Lampan, 1 Selden, 456; Kittle vs. Van Dyck, 1 Sand. Ch. R., 76, The Farmers' Loan and Trust Co. vs. The People, 1 Sand., 139; 2 Gill. & Johns., 318; 4 Leigh., 30; 1 McCord's Ch. R., 270.
It is claimed by Appellants that-the decisions in the New York Courts are not here authority, for the reason that in cases like the present, the statutes of' that State expressly make the mortgage lien prior to that of the judgment. It is true such a statute exists in that state, but that the law was comparatively well settled previous to the enactment of the statute, appears manifest from an examination of the authorities; and *410in Kent, (above cited,) it is said that' “this sound doctrine is, for greater certainty, made a Statute provision in New York.” The act was manifestly declaratory of the rule at common law, though some doubts had been raised concerning it, which it was the object of the statute to remove. The case of Holbrook vs. Finney, above cited, was not decided upon any statute, but upon principles settled by the English authorities, and although that was a case involving the right of dower, it is entirely analagous to the case at bar, and was decided upon the ground that the husband had only an instantaneous seizin, upon which the right of dower could not at-t&ch; And Spencer, Justice, in Stow vs. Tiffit, 15 John., says, “ I entirely agree in the opinion expressed by Ch. J. Parsons in the case of Holbrook vs. Finney, that 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 that he executes the deed, that there the deed and the 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.”
The deed and mortgage then, are to be considered as a single indivisible bargain or contract of sale, and as if they were-written in one instrument, and executed at the same instant by both parties. 'By the mortgage a condition was 'annexed to the grant, and whatever passed by the grant passed subject to the condition. There was no moment of time when Baker owned or held the premises free from the condition, nor when he could voluntarily have ' conveyed’ them, except subject to the mortgage. Can a judgment creditor then, by virtue of his judgment, obtain a greater interest in the premises than the debtor himself had? I think it is well settled, that the lien of the judgment will in all cases be limited to the actual interest which the judgment debtor has in the estate. 1 Atk. on Conv., 512; 1 Paige, 128; 4 Paige, 9. The rule is based on principles of justice and public policy, as well as common sense, and can work no hardship to the judgment creditor. So far as the contract between Pairo' and *411Baker is concerned, there can be no question but that it was the intent to give Pairo the first lien on the premises; nor can it be claimed that he would have parted with the premises on any other condition. The judgment creditor having parted with nothing on the strength oí this conveyance to Baker, it would be highly inequitable to permit the j udgment to be satisfied out of what, in fact, was Pairo’s property.
The deed from Pairo to Baker was dated some ten .days previous to the mortgage from Baker to Pairo, and the Appellants claim that they are bona fide purchasers for a valuable consideration, and that they were justified in regarding the dates of the instruments, as the times of their delivery, respectively. The date of a deed or mortgage, is at most, only presumptive evidence of the time of delivery, and this ’presumption may always be rebutted by proof, as in the case at bar. Nor do the claimants under the judgment stand in as favorable position even,' as would a party actually advancing money to Baker, on a purchase of. the premises at private sale. cc Judgment creditors are not in equity regarded as tona fide purchasers, and entitled to the consideration which equity gives them, when they become such without notice, for a valuable consideration ■ actually paid; but they ■ are looked upon simply as proceeding in invitvm, to enforce their legal demands, and are not entitled to the same favor as a purchaser, whose right may be enforced through the conscience of the other party.” 3 Barb., 285. Such was the law in this state at the time of the sale under the judgment. Greenleaf vs. Edes, 2 Min., 264. But as there never was a time when Baker could have made a voluntary conveyance of the premises free .from the mortgage lien, it is impossible that any person by such means could claim to be a bona fide purchaser, so as ■ to defeat the mortgage. A j udgment creditor therefore, if the position of the Appellants be tenable, would occcupy a better status, than a purchaser of the premises under Baker, for a valuable consideration. And he would be permitted to acquire a larger interest in the premises than his debtor ever had, to the great injury of the equitable and real owners of the estate. The owners of the judgment, and the mortgage, were both creditors of Baker, but the judg*412ment being a general lien must yield to the specific lien of the mortgage. This would be so, had both liens attached at the same instant,' but in accordance with the views above expressed, we hold the lien of the mortgage first attached, and should first be satisfied out of the premises.
The judgment below is affirmed.