filed its motion for a new trial, which was overruled and excepted to, and the Oklahoma State Bank of Wapanucka prosecutes error to reverse the judgment rendered.

At the outset we are met by an insistence on the part of defendants in error that said appeal should be dismissed for the failure of the plaintiff in error to comply with the rules of this court in failing to set out in the brief any assignment of error. If the rule of this court should be strictly applied, this appeal should be dismissed; but we have concluded, notwithstanding this failure to comply with the rules as to assignment of error, to write this case upon its merits, upon the question insisted upon by plaintiff in error: "That, shorn of all trimmings and trappings, the issues before the court were: 'Who had the first lien upon the lands in Coal and Johnston counties?" "

It is insisted that the case of Lunn v. Kellison, Okla. —, 153 Pac. 1136, should be overruled, because the same is not in accord with the other decisions of this court. This contention is without the slightest merit, as the unbroken line of decisions of this court is in accord with the holding in said case of Lunn v. Kellison.

In J. I. Case Threshing Mach. Co. v. Walton Trust Co. 39 Okla. 748, 136 Pac. 769, it is held: "The judgment lien contemplated by § 5941, Comp. Laws 1909, a lien only on the actual interests of the judgment debtor, whatever that may be; therefore, though he appear to have an interest, if he has none in fact, no lien can attach."

Judgmentlien-extent.

In Adams v. White, 40 Okla. 535, 139 Pac. 514, Justice Kane, speaking for the court, says: "A contract for land, bona fide, made for a valuable consideration, vests the equitable interest in the vendee from the time of the execution of the contract, although the money is not paid at that time. When the money is paid, according to the

terms of the contract, the vendee is entitled to a conveyance, and to a decree in chancery for a specific execution of the contract, if such conveyance is refused. A judgment obtained by a third person against the vendor, mesne the making the contract and the payment of the money, cannot defeat or impair the equitable interest thus acquired, nor is it a lien on the land to affect the right of such cestui que trust. A judgment is a lien on the land of the debtor, and attaches on it as a fund for its payment; but the legal estate in the land is not vested in the judgment creditor, although he can convert it into money, to satisfy his debt, by pursuing the proper means.'

Other cases in point are: Brown v. Pierce, 7 Wall. 205, 19 L. ed. 134; Gates Iron Works v. Cohen, 7 Colo. App. 341, 43 Pac. 667; Dalrymple v. Security Improv. Co. 11 N. D. 65, 88 N. W. 1033; Hays v. Reger, 102 Ind. 524, 1 N. E. 386; Story v. Black, 5 Mont. 26, 51 Am. Rep. 37, 1 Pac. 1; Princeton Min. Co. v. First Nat. Bank, 7 Mont. 530, 19 Pac. 210; Dimmick v. Rosenfeld, 34 Or. 101, 55 Pac. 100; Kirby v. Tallmadge, 160 U. S. 379, 40 L. ed. 463, 16 Sup. Ct. Rep. 349.

In Gilbreath v. Smith, 50 Okla. 42, 150 Pac. 719, it is held that "the lien of a justice of the peace judgment, created by filing a transcript thereof in the district court under S$ 5217, 5218, and 5148, Rev. Laws 1910, attaches only to the actual interest of the judgment debtor in the lands involved, whatever that may be, and therefore, though he appears to have an interest, if he has none in fact, no lien can attach."

In said case it is further held: "That as the title passed from G. prior to the filing of the judgment of the justice of the peace in the district court, G. had no interest to which the lien of such judgment could attach, and that the title of M. was superior to that of B., who purchased at the execution sale. A judgment creditor has not the protection of a bona fide purchaser."

I. View that judgment lien has priority: a. In general, 434.

b. Effect of notice of unrecorded mortgage, 442.

II. View that mortgage has priority, 447.

1. View that judgment lien has priority.

a. In general.

In a majority of jurisdictions, under statutes making the recordation of a mortgage a prerequisite to its validity as against subsequent bona fide purchasers and creditors, it is held that a judgment lien is entitled to priority over the lien of a previous unrecorded mortgage, when the judgment creditor has obtained his judgment without notice of the existence of the mortgage, and attaches to whatever interest in real estate the record discloses in the judgment debtor, the statutes being construed as placing judgment creditors on an equality with bona fide purchasers.

Alabama.—De Vendell v. Doe (1855) 27 Ala. 156; Barker v. Bell (1861) 37 Ala. 354; Wood v. Lake (1878) 62 Ala. 489; Chadwick v. Carson (1884) 78 Ala. 116; Autauga Bkg. & T. Co. v. Chambliss (1917) Ala. 75 So. 463. See also Fash v. Ravesies (1858) 32 Ala. 451.

Arkansas.-Hawkins v. Files (1888) 51 Ark. 417, 11 S. W. 681; Cleveland v. Shannon (1889) - Ark. 12 S. W. 497. Chemical

Colorado.-See Western

Mfg. Co. v. McCaffrey (1910) 47 Colo. 397, 135 Am. St. Rep. 234, 107 Pac. 1081.

Georgia. See the cases cited infra, I. b.

Illinois.-Guiteau v. Wisely (1868) 47 Ill. 433; Columbus Buggy Co. v. Graves (1884) 108 Ill. 459; Roane v. Baker (1885) — Ill. —, 2 N. E. 501; Thorpe v. Helmer (1916) 275 Ill. 86, 113 N. E. 954.

Minnesota.-Lash v. Hardick (1878) 5 Dill. 505, Fed. Cas. No. 8,097 (applying Minnesota statute). Compare Dunwell v. Bidwell (1863) 8 Minn. 34, Gil. 18, and Golcher v. Brisbin (1874)

20 Minn. 453, Gil. 407, decided under prior statute.

Mississippi.-Mississippi Valley Co. v. Chicago, St. L. & N. O. R. Co. (1881) 58 Miss. 846; Bingaman v. Hyatt (1843) Smedes & M. Ch. 437.

New Jersey.-Sharp v. Shea (1880) 32 N. J. Eq. 65; Condit v. Wilson (1883) 36 N. J. Eq. 370; Sipley v. Wass (1892) 49 N. J. Eq. 463, 24 Atl. 233. See also Voorhis v. Westervelt (1887) 43 N. J, Eq. 642, 3 Am. St. Rep. 315, 12 Atl. 533, affirming decree (1886) 42 N. J. Eq. 179, 6 Atl. 665.

North Carolina.-Davidson v. Cowan (1830) 16 N. C. (1 Dev. Eq.) 470; Gulley v. Thurston (1893) 112 N. C. 192, 17 S. E. 13; Vanstory v. Thornton (1893) 112 N. C. 196, 34 Am. St. Rep. 483, 17 S. E. 566, overruling Leak v. Gay (1890) 107 N. C. 468, 12 S. E. 312; Bostic v. Young (1895) 116 N. C. 766, 21 S. E. 552; United States v. Devereaux (1898) 32 C. C. A. 564, 61 U. S. App. 548, 90 Fed. 182 (applying North Carolina statute).

Ohio.-Mayham v. Coombs (1846) 14 Ohio, 428; Jackson v. Luce (1846) 14 Ohio, 514; White v. Denman (1852) 1 Ohio St. 110, affirming (1847) 16 Ohio, 60; Home Bldg. & L. Asso. v. Clark (1885) 43 Ohio St. 427, 2 N. E. 846; Ludlow v. Clinton Line R. Co. (1861) 1 Flipp. 25, Fed. Cas. No. 8,600 (applying Ohio statute). See also Magee v. Beatty (1838) 8 Ohio, 396; Tousley v. Tousley (1855) 5 Ohio St. 78. Compare Bank of Muskingum v. Carpenter (1835) 7 Ohio, pt. 1, p. 21, 28 Am. Dec. 616; Lake v. Doud (1841) 10 Ohio, 415.

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Oregon.-Laurent v. Lanning (1897) 32 Or. 11, 51 Pac. 80. Pennsylvania. Semple v. Burd (1821) 7 Serg. & R. 286; Friedley v. Hamilton (1827) 17 Serg. & R. 70, 17 Am. Dec. 638; Jaques v. Weeks (1838) 7 Watts, 261; Manufacturers' & M. Bank v. Bank of Pennsylvania (1844) 7 Watts & S.335, 42 Am. Dec. 240; Hulings v. Guthrie (1846) 4 Pa. 123; Uhler v. Hutchinson (1854) 23 Pa. 110; Corpman v. Baccastow (1877) 84 Pa.

363; Lahr's Appeal (1879) 90 Pa. 507; Hibbard v. Bovier (1855) 1 Grant, Cas. 266.

-

Texas. Cavanaugh v. Peterson (1877) 47 Tex. 197; Stevenson v. Texas & P. R. Co. (1882) 105 U. S. 703, 26 L. ed. 1215 (applying Texas statute). See also Firebaugh v. Ward (1879) 51 Tex. 409; Barnett v. Squyres (1899) 93 Tex. 193, 77 Am. St. Rep. 854, 54 S. W. 41, reversing (1899) - Tex. Civ. App., 52 S. W. 612. Virginia. V. Taylor (1854) 10 Gratt. 580; Hunton v. Wood (1903) 101 Va. 54, 43 S. E. 186.

McCance

Canada.-Miller v. Duggan (1891) 21 Can. S. C. 33 (applying Nova Scotia statute); Union Bank v. Lumsden Mill. Co. (1914) 8 Sask. L. R. 263, 23 D. L. R. 460.

The

"The protection extended to judgment creditors rests on a similar principle, and is germane to that secured to purchasers without notice. purchasers who can maintain a right paramount to an unrecorded deed or mortgage must have purchased subsequently to the making of such deed or mortgage, and must be bona fide purchasers, for a valuable consideration, without notice or knowledge of such prior conveyance or encumbrance. This class alone can claim to have been misled by a failure to record. This class alone can be defrauded by a neglect of this statutory duty. For no other purpose was the statute enacted; to no other class does the grantee owe this duty, and only those who are without notice can claim this protection. The same rule must be applied where the protection the statute affords is claimed by a judgment creditor. He must have become such after the conveyance was made, or the encumbrance created, the failure to record which may mislead him to the belief that the property is standing open for seizure under execution on his judgment." Chadwick v. Carson (1884) 78 Ala. 116.

Under the Illinois statute providing that all deeds and title papers shall be in force and take effect from and after the time of filing the same for record, and not before, as to all creditors and subsequent bona fide purchasers with

out notice, and that as to them, all such deeds and title papers shall be adjudged void until the same shall be filed for record, a judgment creditor and a purchaser are equally protected; "and it is the settled law of the state that a judgment lien attaches to whatever interest in real estate the records disclose in the judgment debtor, in the absence of notice from other sources; and notice at the time of the levy of execution and sale, of an unrecorded mortgage, will avail nothing as against the force of the lien." Columbus Buggy Co. v. Graves (1884) 108 Ill. 459. See to the same effect, Thorpe v. Helmer (1916) 275 Ill. 86, 113 N. E. 954.

In the early Ohio case of Bank of Muskingum v. Carpenter (1835) 7 Ohio, pt. 1, p. 21, 28 Am. Dec. 616, it was held that an equitable mortgage was entitled to a preference over a subsequent judgment lien, inasmuch as the mortgage created a specific lien, whereas the judgment lien entitled the judgment creditor to no other than the right of the debtor, and did not place him in any better condition than to take the place of the debtor himself. That decision was followed in Lake v. Doud (1841) 10 Ohio, 415.

In Magee v. Beatty (1838) 8 Ohio, 396, however, it appeared that a mortgage was executed, acknowledged, and left with the recorder of the county, previous to the first day of the term of the court at which the plaintiff recovered his judgment, but was not actually copied into the record book until after the rendition of that judgment. The court stated that if the mortgage took effect from the time it was left with the recorder, the defendant had the preferable lien; but that if, on the other hand, it took effect only from the time it was copied into the book of record, then the mortgage must be postponed to the plaintiff's judgment. And it appearing that the court was divided in opinion, the legislature passed an act on this subject, in which, after reciting that doubts had arisen "whether deeds of mortgage take effect from the time the same are delivered to the recorder of the proper county for record, or from

the time the same are actually copied into the record book, and that it is proper such doubts should be removed," they declared and enacted "that mortgages do and shall take effect and have preference from the time the same are delivered to the recorder of the proper county, to be by him entered on record" (36 Ohio Laws, 62); and thereunder it was held that the mortgage had the prior lien. Since that decision and act, the court has held that a judgment lien is preferable to that of a prior unrecorded mortgage, or of a mortgage so defectively executed as not to be entitled to record. Mayham v. Coombs (1846) 14 Ohio, 428; Jackson v. Luce (1846) 14 Ohio, 514; Holliday v. Franklin Bank (1847) 16 Ohio, 533; White v. Denman (1853) 1 Ohio St. 110, affirming (1847) 16 Ohio, 60; Home Bldg. & L. Asso. v. Clark (1885) 43 Ohio St. 427, 2 N. E. 846.

In Jackson v. Luce (1846) 14 Ohio, 514, supra, it was held that the lien of a judgment rendered by confession during a term of court had preference over the lien of a mortgage executed and delivered before, but not recorded until after, the term commenced, since by the law, all judgments were placed on the same footing, and the lands of the judgment debtor were bound from the first day of the term in which the judgments were entered.

In Bloom v. Noggle (1854) 4 Ohio St. 45, a case outside the scope of this note, the court discussed the foregoing statute and the decisions thereunder, saying: "In each of the cases of Mayham v. Coombs (1846) 14 Ohio, 428; Jackson v. Luce (1846) 14 Ohio, 514; White v. Denman (1847) 16 Ohio, 59, s. c. in review (1853) 1 Ohio St. 110; and Holliday v. Franklin Bank (1847) 16 Ohio, 533, the contest arose between an unrecorded mortgage, or one defectively executed, so as not to be entitled to record, and a subsequent judgment lien; and in each of them the lien of the judgment was preferred. . . . No one of these cases was decided in ignorance of the general principles to which we have alluded, and in every one of them a different conclusion would have been

arrived at if these principles could have furnished the rules of adjudication. But it was perfectly competent for the legislature to change or modify these rules, and when it had done so, no discretion was left to the judicial tribunals to depart from the express commands of the legislative body. Those commands the courts have regarded as explicit; the statute expressly declaring that mortgages do and shall take effect and have preference, 'from the time the same are delivered to the recorder of the proper county, to be by him entered on record.' To give them any effect before, as against the persons intended to be protected by this statute, would be to repeal it. It was not made for the mortgagor, and therefore, as to him, the record of the mortgage was wholly unnecessary; but it was designed to protect third persons who might acquire legal interests in, or liens upon, the property. As to them, the record was made conclusive; and they are only bound to regard such mortgage liens as the record discloses at the time their rights accrue. The principle deducible from all the cases is, that the legal rights of such persons cannot be displaced at the instance of the holder of a prior unrecorded mortgage, or contract for a mortgage, although acquired with notice of such mortgage, or of the existence of such contract; the object of the law being to avoid all the vexed questions of notice, actual or constructive, in determining priorities of lien. So far as may be necessary to their protection, such a thing as an equitable mortgage is wholly unknown. Until entered for record, they have no effect either at law or in equity against third persons; and until they take effect as legal instruments, they are entirely inoperative to prevent others from acquiring uncontrollable legal interests in the property. The lien they give is governed by the statute, and only attaches when the statute has been complied with. The record gives them vitality, and the record alone can be appealed to to determine when they have taken effect. The doctrine of earlier equities only applies when