dissenting.
The case at bar presents the question of priority as between the lien of a judgment rendered in a case continued from a former term, as against the rights of a mortgagee under a mortgage taken and recorded prior to the rendition of the judgment, but during the same term. The writer hereof conceives that there is a difference in priority between mere liens upon real property, both of them having their origin during the same session of court, and the lien of a judgment rendered during a term, but subsequent to a conveyance by deed of the property attempted to be charged with the lien of a judgment. In the latter case it would seem that at the time of the rendition of the judgment the defendant is possessed of no interest in the real property upon which a general judgment could be operative, hence the difference in the principles above stated. •
Section 477 of the Code of Civil Procedure provides that “the lands and tenements of the debtor within the county where the judgment is entered shall be bound for the satisfaction thereof, from the first day of the term at which judgment is rendered,” etc. There are other classes of cases included within the provision of this section, but the language quoted is all that is applicable to the matter under consideration. It is contended that the term “the lands and tenements of the debtor” refers to the first day of the term at which judgment is rendered, and that, therefore, this provision should be construed as though it read, *749the lands and tenements of the debtor which he owned on the first day of the term shall be bound for the satisfaction of a judgment rendered, no matter at what time during that term. In passing it may be observed that the literal construction contended for would exclude any lands or tenements of the debtor acquired subsequently to the first day mentioned, a conclusion which has been repudiated by this court. It seems to the writer hereof that a more natural and reasonable construction would be that which would cause a paraphrase of the language to read as follows: The lands and tenements of the debtor owned by him when the judgment is. rendered shall be bound for the satisfaction thereof, from the first day of the term at which such judgment is rendered. Any other construction renders the judgment lien operative against lands not owned by the debtor when the judgment is entered, a construction which seems incompatible with several of the decisions of this court.
In Colt v. Du Bois, 7 Neb., on page 394, is found the following language of Judge Gantt, referring to the lien of a judgment upon real property acquired after the rendition of a judgment: “The lien is neither a jus in re nor a jus ad rem, and amounts only to a security against subsequent purchasers and incumbrances. (4 Kent, Com., 437.) It confers only the right to levy on the land to the exclusion of other adverse interests subsequent to the rendition of the judgment, and this right applies to all the lands and tenements of the debtor in the county where the judgment is entered, whether held by him at the time of the rendition or subsequently acquired.”
In Galway v. Malchow, 7 Neb., 285, the subject under discussion was whether or not the lien of a judgment should be declared paramount to the lien of a mortgage as against lands which the mortgage, by reason of a mistake, failed properly to describe, and it was held that the judgment was within the class of cases against which the mortgage *750had become effective irrespective of the record thereof as provided by section 16, chapter 43, Revised Statutes. Judge Lake, discussing the lien of the judgment in this case, said: “And this lien is a legal one and does not exceed ‘the actual interest which the judgment debtor had in the estate at the time the judgment was rendered.’ (Brown v. Pierce, 7 Wall. [U. S.], 205.) It is well settled that a judgment lien on the land of a debtor is subject to every equity which existed against the debtor at the rendition of the judgment, and courts of equity will always limit the lien to the actual interest of the judgment debtor. (Freeman, Judgments, sec. 357, and cases cited; Swartz v. Stees, 2 Kan., 236.)”
In Berkley v. Lamb, 8 Neb., on page 399, will be found the following language of Maxwell, C. J., to-wit: “In the case of Colt v. Du Bois, 7 Neb., 391, it was held that the lien of a judgment attaches to all the lands and tenements of the debtor in the county where the judgment is rendered, whether held by him at the time of its rendition or subsequently acquired. We adhere to that decision, but the lien of the judgment attaches only to the interest of the debtor in the land (Filley v. Duncan, 1 Neb., 145; Uhl v. May, 5 Neb., 157; Galway v. Malchow, 7 Neb., 285), and the lien can attach to no greater interest than that owned by the debtor.” Cobb, J., approved of the line of argument of the chief justice, and the dissent of Lake, J., is mentioned at the end of the above opinion, but there is given no statement of the grounds of that dissent, though, in view of his language in Galway v. Malchow, quoted above, it could hardly have applied to the portion of the opinion of the chief justice just quoted. This inference finds countenance in the following language in the opinion filed by Lake, J., in Mansfield v. Gregory, 11 Neb., on page 298: “The lien of an ordinary judgment on the real estate of the debtor is not specific but general, and is subject to all prior liens, either legal or equitable. (Metz v. State Bank of *751Brownville, 7 Neb., 165.) Such lien does not exceed the actual interest of the judgment debtor in the land and is subject to every equity therein existing against the debtor at the time of its rendition. (Galway v. Malchow, 7 Neb., 285.)”
In Leonard v. White Cloud Ferry Co., 11 Neb., 338, and in Dewey v. Walton, 31 Neb., 819, this court again reiterated and enforced the rule that the lien of a judgment could attach to no greater interest in the land than the defendant possessed, citing the authorities above referred to and quoted from. This may, therefore, be accepted without question as fully settled in this state, and it therefore becomes important to consider what interest a defendant retains in real property after his conveyance thereof. Section 50, chapter 73, Compiled Statutes, provides that “ every conveyance of real estate shall pass all the interest of the grantor therein, unless a contrary intent can be reasonbly infei-red from the terms used.”
In Edminster v. Higgins, 6 Neb., 265, this court had under consideration the right of a vendor to a vendor’s lien upon real property for its purchase price, and Maxwell, J., in the opinion filed, used the following language immediately following section 50, supra, which he had just quoted: “ The obvious intention of the registry act is to give notice to all persons who may have occasion to ascertain whether there has been any prior incumbrance or conveyance of any real estate, and the notice given by the record is as effectual in law as personal notice to the party to be affected by it. The policy of our law is to discourage secret liens and to require all instruments affecting the title of real estate to be entered of record.. The law thus places the means within the reach of every one desiring to purchase real estate of ascertaining the condition of its title.” The opinion just referred to contains the following language almost at its close: “We are clearly of opinion that the doctrine of a vendor’s lien in a case like the one at bar *752is repugnant to our statutes in relation to real estate, and is, therefore, no part of our law.” It is difficult to imagine why these considerations are not applicable to the lien of a judgment obtained after the first day of the term at which it was rendered, as affecting a conveyance meantime made by the defendant. It may be claimed, however, that the pendency of the action constructively affects with notice of the result all parties who contemplate purchasing real property of the defendant. The law governing Us pendens is found in section 85 of the Code of Civil Procedure. It provides that “ when the summons has been served, or publication made, the action is pending so as to charge third persons with notice of pendency, and while pending, no interest can be acquired by third persons in the subject-matter thereof, as against the plaintiff’s title.” This language is followed by a long proviso, probably intended to require the filing in the office of the county clerk, or register of deeds, of a notice defining the object of the action, its subject-matter, etc. As this proviso was intended as a limitation most likely, though as to its effect there is no great certainty, the part above quoted is that upon which alone, if at all, a judgment lien in the case supposed can be made effective as against the purchaser of real estate. It cannot escape observation that by the provisions of section 85 notice is implied to third parties of the pendency of the action, and that while the action is pending third persons can acquire no interest in such subject-matter as against the plaintiff’s title.
As has already been noted, it was stated in Colt v. Du Bois, 7 Neb., 394, by Judge Gantt in delivering the opinion of this court, that a judgment lien is neither a jus in re nor a jus ad rem, and amounts only to a security against subsequent purchasers and incumbrancers. The language of section 85 implies that notice Us pendens is restricted entirely to the plaintiff’s title to the subject-matter in dispute and, therefore, could operate only where the sub*753ject-matter litigated is a jus in re or a jus ad rem. The •case of the Lincoln Rapid Transit Co. v. Rundle, 34 Neb., 559, quotes from text-writers of approved authority, illustrating the origin, necessity, and application of the rule of Us pendens, laid down in section 85 of the Code of Civil Procedure, harmoniously with the views just expressed. The conclusion is irresistible that the pendency of a suit which finally culminates in a judgment during the term is not notice that such a lien may arise incidentally thereto as against a conveyance meantime made, for the very good and sufficient reason that it is not justified by the terms of section 85 just referred to. If a purchaser is not bound by the notice Us pendens as to the liens incident to and arising out of a judgment subsequently rendered against his grantor/ and if the judgment lien is effective only against the interest of the judgment defendant, as it is believed has been conclusively shown by the decisions of this court, the conclusion is inevitable that the lien of the judgment can have no relation back of its origin to the prejudice of a purchaser of real property of the defendant pending suit for the recovery only of a money judgment. This conclusion has been reached on other lines of inquiry, as will appear by the following quotations and the cases cited in support of each:
“A judgment will not be considered to relate to the first day of the term for the purpose of giving it priority over a conveyance to a purchaser for value and without notice.” (12 Am. & Eng. Ency. of Law, page 115, citing in note the cases following: Morgan v. Simms, 26 Ga., 283. See, also, Skipwith v. Cunningham, 8 Leigh [Va.], 272; Withers v. Carter, 4 Gratt. [Va.], 407; Brochenbrough v. Brochenbrough, 31 Gratt. [Va.], 580.)
In section 442 of Black on Judgments is found the following language: “As against intervening purchasers, it may be regarded as settled that the lien of a subsequent judgment will not attach, justice forbidding that in such *754a case it should relate back to a time anterior to the conveyance;” citing Morgan v. Simms, 26 Ga., 283, and Pope v. Brandon, 2 Stew. [Ala.], 401, 20 Am. Dec., 49.
In section 369 of Freeman on Judgments the rule is thus stated: “However the fiction of law by which judgments are considered as being rendered on the first day of the term may affect one judgment lien in a contest with other liens of the same nature, it seems to be generally conceded that it cannot prejudice the interests of bona fide purchasers. Whenever a purchaser before the signing of judgment without notice, and without being guilty of any fraud, acquires an interest in real estate, that interest cannot be charged with the lien of any judgment subsequently entered against his grantor, though such judgment might, as between itself and other judgments, rank as though entered at the beginning of the term and at some time prior to its actual rendition. In Virginia the rule that judgments relate to the first day of the term has always prevailed, unless the court in fact met for the term on a day subsequent to that appointed by law for the first day of the term, in which case a judgment lien was decided not to overreach a conveyance recorded before the day on which the court met, though after the.time when it ought to have met. In order to rank as of the first day of the term at which it was rendered, the judgment must be the final determination of an action which was in such a condition that it might have been tried and disposed of on the first day if it had happened to have the first place on the caleniar. The reason why judgments rendered at different dates were ever treated as of equal rank was because all the cases ready to be tried at the opening of a given term were equally entitled to the precedence arising from being first decided; and in order to avoid giving any suitor an advantage due entirely to the fortuitous circumstance that his cause was first called for trial, it was thought proper, by aid of a legal fiction, to assign his judgment a place in *755nowise superior to that assigned to others equally entitled to precedence.”
It is the belief that an examination of the cases upon this subject will sustain the utterances of the text-writers quoted from, in relation to conveyances of real estate made during the term at which judgment is rendered. The language last above quoted indicates the reason why the statute fixed the rule as between the lienors by virtue of judgments, and it is believed that portion of the statute should not be extended so as to include rights other than those in the nature of liens upon the property in the hands of a judgment debtor at the time of the rendition of judgment.
In thus broadly stating the rule as to conveyances made during the term at which judgment is subsequently rendered, the case of Kellerman v. Aultman, 30 Fed. Rep., 888, has not been overlooked. In the case referred to, Brewer; circuit judge, after quoting section 477 of the Code of Civil Procedure, used the following language: “As the action in which the judgment of Aultman v. Van Slylce was ren-. dered was commenced before the January term, the plain import of the language of this section carried the judgment lien back to the first of the term and to a day before the conveyance of Yan Slyke. This section is identical with those found in the statutes of Ohio and Kansas, and has by the courts of this state, as well as of those, received a uniform construction. (Urbana Bank v. Baldwin, 3 O., 65; Jackson v. Luce, 14 O., 514, Davis v. Messenger, 17 O. St., 231; Kiser v. Sawyer, 4 Kan., 503; Miller v. Finn, 1 Neb., 294; Colt v. Du Bois, 7 Neb., 394.) In this last ease the court uses this language: ‘The rule .will not be questioned that under our statute relative to judgment liens, all judgments rendered during the term in actions commenced prior thereto are liens on all the lands of the debtor within the county from the first day of the term.’ • These authorities, especially those from the supreme court of this state, cons'ruing the effect of one of its statutes, *756puts the question at rest.” It is clear from the language of Brewer, J., just quoted, that his opinion was largely based upon the language quoted from Colt v. Du Bois, 7 Neb., 393. As illustrating the slight examination which the learned judge must have given to that case, it will be profitable to examine the facts under consideration in the case of Colt v. Du Bois. From the opinion of Gantt, C. J., we learn that on the 18th of October, 1872,0. J. Martin, one of the defendants, acquired possession of a certain tract of land in Lancaster county, Nebraska. The remaining statement of facts I quote from the opinion, as well as the language quoted by Brewer, J., in the connection in which it occurred. That “in August, 1872, Isaiah Koppuck commenced an action against O. J. Martin in the district court of said county, and on the 30th of October, 1872, at a l’egular term of said court which was begun on the 1st day of the same month, he recovered a judgment against said defendant Martin in said action. Afterwards Koppuck assigned this judgment to defendant J. W. Hartley, who thereby became the legal owner of the same. On the 2d of November, 1874, O. J. Martin and Ann, his wife, executed and delivered to 8. 0. Colt, plaintiff in error, a mortgage on all the above described lands. The plaintiff complains that under these facts the court below erred in deciding that the Koppuck judgment ■assigned to Hartley had priority of lien over his mortgage. It is insisted that the judgment in this case has relation to the first day of the term at which it was rendered, and as all the lands described were subsequently acquired by defendant O. J. Martin,, the judgment created no lien upon any of these lands, though the title was acquired before the rendition of the judgment, and, therefore, the plaintiff's mortgage has priority of lien over the judgment. The rule will not be questioned that under our statute relative to judgment liens, all judgments rendered during the term in actions commenced prior thereto are liens on all the lands *757of the debtor within the county from the first day of the term. This interpretation is given to the statute in the case of Miller v. Finn, 1 Neb., 294, and it places all such judgments entered at the same term upon equality in regard to liens,, and thereby does equal justice to creditors whose judgments are necessarily entered on different days of the terms.”
The quotation which has just been made includes the language quoted by Brewer, J., which he regards as decisive of the question as to the rights of a grantee under a• deed made during a term at a date prior to the rendition of the judgment. The case actually under' consideration by this court in the case of Colt v. Du Bois, supra, involved the right of a judgment lien-holder as against a mortgagee, not as against the grantee under a deed. The case1 of Miller v. Finn, relied upon by Brewer, J., in that opinión, is correctly and fully summarized in the language which we have just quoted from Colt v. Du Bois. It will thus be seen that in neither of the Nebraska cases relied upon by Brewer, J., was there involved any question of the rights of the holder of real estate under a deed. This distinction is important in view of the provisions of section 50, chapter 73, that every conveyance of real estate shall pass all the interest of the grantor therein unless a contrary intent can be reasonably inferred from the terms used. As to a mortgage, the provisions of section 55 of said chapter 73 are that, “in the absence of stipulations to the contrary, the grantor of real estate retains the legal title and right of possession thereof.” And the rule governing mortgages áffords no analogy as to the principle which should' be applied to absolute conveyances.
The other cases cited by Brewer, J., in Kellerman v. Aultman are equally wide of the mark. For. instance, in Urbana Bank v. Baldwin, 3 O., 65, the entire opinion of the court is as follows: “ The case may be a hard one, but the law is clear in favor of the plaintiff’s lien. The suit was pending *758on the first day of the term, and when that is the case the judgment relates back to that date, no matter on what day of the term it was confessed. There can be no reason for the court to restrain the words of the statute in this case that would not apply to every other. It does not follow that the lien must extend to the first day of the term if no process was then pending. It is sufficient, however, to decide that case when it comes up for decision.” The principle decided in the ca.se of Jackson v. Luce, 14 O., 514, cited by Brewer, J., in support of his conclusion, is comprehensively stated in the syllabus in the following language : “A judgment entered by confession during the term of court of common pleas operates as a lien 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.” The sole remaining case cited by Brewer, J., is that of Kiser v. Sawyer, 4 Kan., 503, in which the court had under consideration the term “lands, tenements, and hereditaments,” and the question was, whether or not a statute providing that the lands and tenements should be bound for the satisfaction of a judgment included an equitable as well as a legal interest therein. It was held in that case that the lien of a judgment operated against the equitable as well as the legal estate in lands and tenements of the debtor, which equitable estate might be reached under the provisions of the Kansas statute applicable to cases of that kind. This was the only question that was decided, and as the supreme court of Kansas reached a different conclusion from that attained by this court in the ease of Nessler v. Neher, 18 Neb., 649, in which the lien of a judgment was held not to attach to a mere equity in real estate, the Kansas case is of no value in the matter under discussion. Prom this review of the authorities relied upon by Brewer, J., it is apparent that the opinion rendered by him in the case of Kellerman v. Aultman has very little practical value, *759for it is evident that he gave the case but very hasty consideration. The positive terms in which the contrary rule is laid down in Black on Judgments, in the American & English Encyclopedia of Law, and in Freeman on Judgments, supported as these text-writers are by the authorities cited, should have a much greater weight than should be accorded to the opinion of Judge Brewer referred to.
In view of the, language of our statute, the former holdings of this court, the great injustice which would be wrought by any other holding, it is believed that the lien of a judgment which is rendered subsequent to a conveyance by the defendant of real property ought not to be held superior to, or in contravention ofj the interest the grantee acquired by such conveyance.
Ragan, C., concurs.