Martin . Wagener. exempt from said judgment, and the lien, effect or operation thereof; that the defendant Rebecca R. Wagener, her assigns, agents, servants and attorneys, be forever enjoined and restrained from causing or permitting any of said lands or premises to be sold on said judgment, or by virtue thereof, or of any execution already issued or hereafter to be issued thereon, except the lots last above named and described, and from enforcing or endeavoring to enforce said judgment against any of said lands and premises except said last named lots; and for general relief. The referee found and decided, as conclusions of law, from the foregoing facts: 1. That the equitable title and interest of Russell Martin to the lands conveyed by Olean Smith to him and the plaintiffs, was transferred to the plaintiffs before the said conveyance, and that said Russell Martin acquired no title by the said conveyance which was subject to the lien of said judgment. 2. That the interests of Russell Martin, except the legal title conveyed by Olean Smith by her deed of June 1, 1867, and the lands described in the complaint, were liable to contribute to the satisfaction of the said judgment in favor of Joseph W. Upham against Russell Martin, in succession in the following order: (1.) The lands described as all that certain piece or parcel of land of lot 18 in block 85 in the village of Olean, Cattaraugus county, of the T. J. Gosseline survey, situated in the northwest corner of said lot 18. (2.) The lands conveyed by the sheriff of Cattaraugus county to Truman R. Coleman, pursuant to sale upon the judgment in favor of the First National Bank of Titusville, against Russell Martin, docketed June 13th, 1867. (3.) The lands conveyed by Russell and Stanley Martin to the plaintiffs, October 18, 1866. (4.) The lands described as lots 4, 5, 6, 8 and 10, south of Allegany river, conveyed by the sheriff of Cattaraugus county, pursuant to sale upon judgment of Chautauqua National Bank against Russell Martin v. Wagener. Martin, docketed June, 18, 1866. (5.) The lands conveyed by Russell Martin to Joseph R. Jewell, June 6, 1866. 3. The referee found and decided, that all the interest which Russell Martin had in the lands of the plaintiffs, at or subsequent to the docketing of the said Upham judgment, except the title conveyed to him by Olean Smith, was subject to the lien of said judgment, and liable to be sold upon execution thereon, before resorting to the lands conveyed by the sheriff of Cattaraugus county to said Josephus H. Clark, or to the lands conveyed by Russell Martin to Joseph R. Jewell. 4. That the plaintiffs had no such interest in said lands conveyed by Russell Martin to said Jewell, or in the relief prayed for in respect to such lands, as entitled them to maintain this action. 5. That the defendant Rebecca R. Wagener was entitled to judgment that the complaint be dismissed, with costs, to be recovered by her of the plaintiffs. Judgment was entered accordingly. D. H. Bolles, for the appellants. First. The ultimate determination of the referee, and the judgment for which he provided in his report, are wholly inconsistent with, and absolutely unsustained by, his preliminary conclusions of law, in several important particulars. I. He expressly decided that the interest of Russell Martin in the village lots 17, 18, 19, 20, 21 and 22, block 85, was primarily chargeable with the Upham judgment, and was liable to be sold thereon, before the interest acquired by the appellants from Russell Martin was resorted to, and yet he withheld from the plaintiff all relief predicable upon that decision, and awarded to the defendant Wagener, who owned and was seeking to enforce that judgment, a simple and absolute judgment of dismissal of the complaint. If this preliminary decision was sound, as it unquestionably was, the plaintiffs were entitled to a Martin v. Wagener. judgment containing a provision to that effect. Such relief was not only consistent with the case made by the complaint, and embraced within the issue, but was practically, though perhaps not in express terms, demanded in the complaint itself, and should have been accorded by the referee. (Code, § 275. Marquat v. Marquat, 2 Kern. 336. Beach v. Cooke, 28 N. Y. 508.) II. But the error of the referee as to another aspect of the case is still more singular and important. He expressly decides, as an abstract proposition, that the interest in Olean Smith's original seventh of the property, acquired by the appellants from Russell Martin, was absolutely exempt from liability on the Upham judgment. In this he was undoubtedly right, for although Russell Martin held the nominal legal title to a third of that seventh, he had, long before that title accrued to him, divested himself of all equitable interest, in favor of the appellants; and it is well settled that such a title does not subject the land to the charge of a judgment. (Ells v. Tousley, 1 Paige, 280. Towsley v. McDonald, 32 Barb. 604. Moyer v. Hinman, 3 Kern. 180. Tisdale v. Jones, 38 Barb. 523. Siemon v. Schurck, 29 N. Y. 598.) If the price paid for Mrs. Smith's seventh is any test of the value of the interest thus decided to be exempt, the report determines in effect, as an abstract proposition, that an interest of the value of $4000, belonging to the appellants, which is nominally subject to the judgment the defendant Wagener is seeking to enforce against it, is actually entitled to be exonerated from it, and yet by withholding any relief based upon that proposition, practically decides that she is entitled to sell this identical exempt interest upon her judgment. And this, too, when the very relief the appellants demand in their complaint consists in vindicating this interest with others, from the lien and charge of that judgment. Second. As between the lands south of the Allegany river, the title to which was held by Clark, and the inter Martin. Wagener. est acquired by the appellants under their deed from Russell Martin, the former were chargeable primarily with the payment of the Upham judgment, although the judgment under which Clark acquired his title was recovered prior to Russell Martin's conveyance to the appellants. I. The ordinary rule, as to the grades of liability of lands incumbered by mortgage or judgment, is that they are chargeable in the inverse order of alienation. (Stuyvesant v. Hall, 2 Barb. Ch. 151. Clowes v. Dickenson, 5 John. Ch. 235. 9 Cowen, 402. Crafts v. Aspinwall, 2 Com. 289.) The absolute alienation by deed does not, however, always determine the question of time. If the deed is executed in pursuance of a preliminary contract, the date of the contract determines that question. (James v. Hubbard, 1 Paige, 228. Crafts v. Aspinwall, 2 Com. 289.) If the alienation accrues from a judicial sale, the time the judgment under which the sale took place became a lien, will control. (Woods v. Spalding, 45 Barb. 602. Stuyvesant v. Hall, supra.) But time is by no means the exclusive test, and only applies where the equities are otherwise equal. (Patty v. Pease, 8 Paige, 277. Woods v. Spalding, supra, p. 608.) It is not at all uncommon, and certainly not inequitable, where special reasons exist in particular cases, to modify the rule as to time, and to charge the incumbrance upon the lauds first alienated. Whenever the original incumbrance debtor on the one hand, and a successor in interest in part of his realty, on the other, either by apt agreement or by act or implication, have charged that part of the realty with the incumbrance, or the imperative equities of the case require it to be so charged, the test of time is destroyed. (Marsh v. Pike, 10 Paige, 595. Ferris v. Crawford, 2 Denio, 595. Russell v. Pistor, 3 Seld. 171.) II. The equities of the appellants are in their intrinsic character superior to those of the defendant Clark. 1. They had no notice of either judgment at the time they Martin v. Wagener. purchased from Russell Martin. No deduction or allowance was made by the parties on account of these judgments. The contract of August 31st, 1866, contemplated and expressed that Russell Martin should convey to the plaintiffs the interests he acquired by and after the death. of his father in all the lands except those south of the river, in the precise condition in which that interest accrued to him. His deed of October 18th, 1866, in pursuance of that contract, purported to convey that interest in the condition in which it accrued to him. This was tantamount, in every essential, so far as this question is concerned, to a covenant of warranty on his part. (Wood v. Spalding, supra, 608. 2 Lead. Cases in Equity, p. 244, 3d Am. ed.) 2. The transaction between Russell Martin and the appellants, on the 3d day of August, 1866, consummated on the 18th of October of the same year, was tantamount, in legal effect, to an appropriation on his part of the lands south of the river to the payment of both judgments, and the conveyance to him by the appellants of an additional estate in these lands for that purpose. When Clark took his deed he took it charged with that burden and subject to all the equities existing against these lands; for although the bank judgment was recovered prior to the transfer, it gave rise to no equity before it became a lien, and the equity of the appellants was prior in time, and superior in character. (Matter of Howe, 1 Paige, 124. Buchan v. Sumner, 2 Barb. Ch. 165. White v. Carpenter, 2 Paige, 217. Keirsted v. Avery, 4 id. 9.) 3. The transaction between the appellants and Russell Martin was tantamount to a voluntary partition of the estate of their father. Such a partition is recognized by the courts as valid and binding, and should have the same effect, as to a judg ment against him, that a partition by action should have under the provisions of the statute. (3 R. S. § 9, tit. 3, ch. 5, part 3.) The case of Wotten v. Copeland, (7 John. Ch. 141,) cited by the referee in his opinion on this point, |