Opinion
December Term, 1849
S.A. Foot, for the appellant.
J.L. Talcott, for the respondents.
It seems to me, that to give the complainant the relief he asks for, would be going further than any adjudged cases, and further than the principle upon which they are founded will warrant. The furthest the courts have yet gone, is to give a prior specific equitable lien a preference over a subsequent legal lien by judgment, which is only a general lien. (1 Paige, 125, 280.) But we are asked to displace the lien of a judgment, prior in date to the creation of the equitable lien, and also prior in its attaching as a lien on the land in question, on the subtle notion that as both demands existed prior to the title vesting in Allen, both demands attached as liens at the same instant of time; the one as a general, and the other as a special lien; and that the latter is, as a special lien, entitled to a preference. But I am of opinion that in order to entitle the equitable lien to this preference, it should at least have the merit of having been created on some new consideration advanced on the faith and credit of the specific lien then created — and not be founded on an old debt. Without such an element in the complainant's case the equities of the parties are equal, and the defendant must be left to enjoy his legal rights.
There is another consideration which will deprive the complainant of the remedy he seeks. His agreement with Allen permitted the latter to give the mortgage any time within ten days after Allen was seized of the title. At the date of this agreement the judgment was in existence, and the parties must be deemed to have contemplated the state of things which would have been produced, if the contract had been carried out according to its terms. The judgment under which the defendants claim would attach as a lien, the moment Allen obtained the title, but the complainant's mortgage not until its execution. Thus the defendant would have had the oldest lien. For the above reasons the decree should be affirmed.
Decree affirmed.