"almost criminal," as such a remark did not amount to calling him a murderer, as claimed by opposing counsel, but was a legitimate criticism of the want of ordinary and reasonable care on the part of the witness. Casey v. Kelly-Atkinson Constr. Co. (1909) 146 Ill. App. 551, affirmed in (1909) 240 Ill. 416, 88 N. E. 982.

In Chicago City R. Co. v. Bennett (1905) 214 III. 26, 73 N. E. 343, it appeared that a physician testified that he was called to the house of a woman suing for personal injuries, and, finding her in bed, raised the bed covering and her night clothes in order to make a proper examination of her injuries. Counsel for the defendant, in his closing argument to the jury, attacked in very vigorous language this conduct on the part of the physician, characterizing it as improper and unlawful. Over the objection that such an attack on a witness was prejudicial error, the court held that as the physician, by one answer, had made, either inadvertently or otherwise, a statement which furnished some ground for the attack on him, it did not constitute reversible error.

And it has been held that where a physician who had attended the plaintiff in an action for damages for personal injury appeared at the trial as a witness for the defendant, and stated in his testimony that he came into court at the instance of the defendant, and expected it to pay him a fee of $100, it was not improper for counsel to insinuate in his argument that the witness could not be relied on, as he was guilty of unprofessional conduct, and in effect had been bought by the defendant. Missouri, K. & T. R. Co. v. Follin (1902) 29 Tex. Civ. App. 512, 68 S. W. 810.

Likewise, where it appeared that a physician had been guilty of systematic violation of his duty not to disclose communications made to him by his patient, it has been held that it was not prejudicial error for counsel to reflect upon his character by severe criticism and condemnation. Loudoun v. Eighth Ave. R. Co. (1897) 16 App. Div. 152, 44 N. Y. Supp. 742, 2 Am. Neg. Rep. 419, reversed on other grounds in (1900) 162 N. Y. 380, 56 N. E. 988.

In Tatum v. State (1901) 61 Neb. 229, 85 N. W. 40, it was held that accusing a witness of having guilty knowledge of the property he purchased of accused having been stolen, and receiving it as such, being based on evidence, was legitimate, though the remarks were severer than necessary.

In State v. Hudson (1899) 110 Iowa, 663, 80 N. W. 232, it was held not to be reversible error for a prosecuting attorney to allude to witnesses of the defendant as tramps, where it appeared from the evidence that they were seen among a body of men who conduct themselves as tramps usually do.

And in State v. Nowells (1906) 135 Iowa, 53, 109 N. W. 1016, the court, without setting out the remarks of counsel except that he designated certain witnesses as "nomads" and "pals," held that while his argument may have exceeded the bounds set by good taste, they were not sufficiently vituperative to justify a reversal, in view of the fact that the court was of the opinion that the accused was accorded a fair trial, and his conviction was amply sustained by the evidence. M. B.

of the court.

maw, Barger, trustee, and purchasers from Weddle, to subject certain lots in the hands of Weddle's alienees to the lien of its judgment, and an account of lands, with the

On March 1, 1907, O. N. Moomaw, one of the appellants, sold and conveyed a tract of 97 acres of land, situated in Montgomery county, to John C. Weddle, for $1,455.50, of which sum $275 were paid in cash and five notes were taken for the residue. The credit instalments were secured by a contemporaneous deed of trust on the land, with D. H. Barger, the other appellant, as trustee. The deed from Moomaw to Weddle was recorded May 29, 1907, and recited that the deferred payments were secured by a deed of trust on the land conveyed, but the deed of trust was not recorded until May 20, 1910. Weddle subdivided the original tract of 97 acres into lots, and sold them from time to time to various purchasers, Dabney Jordan and Felix Dow, the appellees, ultimately be coming the owners of two of the lots, each containing 10 acres. June, 1910, Adams, Payne, Gleaves, Incorporated, a judgment creditor of Weddle, filed a lien creditor's bill in Montgomery county circuit court against Weddle, Moo

In

&

was ordered.

The commissioner reported the judgment of Adams, Payne, & Gleaves, Incorporated, and other judgments against Weddle, as liens on three parcels of land, including the two 10-acre lots now owned by the appellees, prior in dignity to the lien of Moomaw's deed of trust, the theory of the commissioner being that the judgments were recovered and docketed before the deed of trust was recorded.

Appellants excepted to the report on other grounds, but did not except to the commissioner's finding that the judgments were entitled to priority over the deed of trust with respect to the above-mentioned three lots. The circuit court sustained the exception to the report, but confirmed it in all other particulars, and sold the three lots and applied the proceeds towards the discharge of the judgments. More than three years afterwards Moomaw filed a petition for a rehearing, which was denied, and at the same time a final decree was entered in the creditors' suit, from which decree no appeal was taken.

Subsequently, on August 25, 1914, appellants advertised the two lots belonging to appellees for sale to pay the balance due on the deed of trust, but the sale was enjoined, and from the decree of February 22, 1915, perpetuating the injunction and directing that the deed of trust be released and marked satisfied so far as it affected appellees' lots, this appeal was granted.

It was admitted that the commissioner and court erred in allowing priority to the judgments over the deed of trust on the lots in controversy. That ruling contravenes the established doctrine that where a purchaser, contemporaneously with the execution and delivery of

Judgmentpriority over

mortgage.

the deed to land sold, executes and purchase money delivers to the vendor a deed of trust thereon to secure the purchase money, the two conveyances are to be regarded as parts of one transaction, and the vendee acquires temporary seisin only, and not such a beneficial interest in the land as may be subjected to the lien of a judgment until the deed of trust is satisfied. The same is true with respect to dower-it does not attach in such circumstances. Summers v. Darne, 31 Gratt. 791; Sinclair v. Sinclair, 79 Va. 41; Cowardin v. Anderson, 78 Va. 88, 90; Coffman v. Coffman, 79 Va. 508; Straus v. Bodeker, 86 Va. 548, 10 S. E. 570; Charlottesville Hardware Co. v. Perkins, 118 Va. 34, 86 S. E. 869; 1 Minor, Real Prop. § 269.

The appellants were parties to the lien creditors' suit from the time of its institution until it was finally disposed of, and knew all the facts disclosed by the record, yet they stood by and suffered the commissioner's report to be confirmed without exception, which subordinated their deed of trust to judgments against Weddle, and, furthermore, they permitted the lots to be sold, the sales confirmed, the purchase money paid and distributed,

and deeds made to the purchasers. It is true that in February, 1914, Moomaw filed a petition to rehear the decree of the special March term, 1911, but the petition was dismissed, and at the same time the creditors' suit was dismissed, all the objects for which it was instituted having been accomplished. From that final decree no appeal was taken, and however erroneous it may have been it is conclusive upon the parties, and is not amenable to collateral attack. This is even a stronger case for noninter- lateral attack. ference than Phipps

-effect-col

It will be observed that the decision in the reported case (MOOMAW V. JORDAN, ante, 427), denying prority to the judgment over the unrecorded deed of trust, does not rest upon general principles denying judgment creditors the benefit of the recording, but upon the ground that, the deed of trust having been executed contemporaneously with, and as part of the consideration for, the deed to the vendee, the latter acquired a temporary seisin only, and not such a beneficial interest as may be subjected to the lien of a judgment before the deed of trust is satisfied. The general subject of priority as between judgment liens and unrecorded mortgages is the subject of the annotation beginning at page 434, post.

(— Okla. — Cann, D. E. Booker, C. D. Carter, City National Bank of Ardmore, Southwestern Insurance Company, and Oklahoma State Bank of Wapanucka, defendants. This suit was upon two notes, one for $1,000 and the other for $1,500, executed by Richard H. McLish. To secure the payment of these notes, Richard H. McLish, joined by his wife, Rosa McLish, gave to the plaintiff a mortgage upon certain land described in the mortgage, situated in Johnson county, Carter county, and Coal county. The mortgage was recorded in Carter county on the 5th day of December, 1908, and in Coal county on July 11, 1913, but was never recorded or filed for record in Johnson county. On the 23d day of August, 1910, Richard H. McLish executed a mortgage upon the same property, together with other lands, to Cal. Stewart, Joe Wilford, H. C. Long, H. P. McCann, D. E. Booker, and C. D. Carter, to indemnify them as his surety upon a $2,500 note. This mortgage was filed for record in Carter county on the 23d day of August, 1910, in Johnson county on the 25th day of August, 1910, and in Coal county on August 26, 1910. Said mortgage, among other things, has this stipulation therein: "It is understood that there are other mortgages covering this same property, and this mortgage is given subject to same."

On the 3d day of October, 1911, Richard H. McLish gave a mortgage on this same property to W. H. Paul to secure him in the payment of a note of $635. This mortgage was assigned to E. L. Spencer, and was filed for record in Coal county on 24th day of January, 1913, and in Carter county on 7th day of October, 1911. On the 4th day of June, 1912, the Oklahoma State Bank of Wapanucka recovered a judgment against Richard H. McLish and others for the sum of $1,291.54, and on the same date, June 4, 1912, the Oklahoma State Bank of Wapanucka recovered a judgment against Richard H. Mc

162 Pac. 1124.)

Lish for $568.70. Lish for $568.70. Both of these judgments were had in Johnson county, Oklahoma. Transcripts of these judgments were filed in the office of the district court of Coal county, June 29, 1912, and in Carter county July 1, 1912. Cal. Stewart and others filed an answer to the petition of S. B. Burnett, setting up their mortgage and claiming that their mortgage was superior to that of S. B. Burnett. The defendant W. H. Paul filed his answer, setting up his mortgage and claiming that the same was superior to that of S. B. Burnett. To these the plaintiff, Burnett, replied, and pleaded in the reply that said mortgages were taken subject to his mortgage. The Wapanucka State Bank filed its answer, in which it claimed that its judgment lien was superior to all the mortgages, and that it had the first lien upon the property by reason of said judgment. The City National Bank of Ardmore filed a disclaimer. The Southwestern Insurance Company did the same. W. A. Ledbetter did not file his answer. E. L. Spencer filed his interplea, alleging that he had been subrogated by assignment to all the rights of W. H. Paul, given him by reason of said mortgage, and with the pleading in this condition the case was tried and the Oklahoma State Bank of Wapanucka is the only one here that is complaining of the judgment of the court. The evidence in the case supports the allegations of the various pleadings filed therein except as to the allegations of the superior lien of plaintiff in error. Case was tried to the court, and the court adjudged that Burnett had a first lien upon said land; that Cal. Stewart and others had a second lien upon said lands; that Spencer had a third lien; and that the plaintiff in error, the Oklahoma State Bank of Wapanucka, had a fourth and last lien,-and ordered the premises sold and the proceeds derived from such sale distributed in accordance with the decree as to priorities. In due time the Oklahoma State Bank of Wapanucka