[Ex parte Massie.] Ex parte Massie. Petition for Mandamus. 1. Decree rendered after death of a material defendant.-A decree rendered on the same day, but after the death of a material defendant in the cause, is void, and a chancellor commits no error in setting aside the same on motion. APPEAL from the Chancery Court of Mobile. Jessie H. Massie filed a bill in chancery against Emma P. Cullen and Lawrence J. Cullen, husband and wife, setting up that defendants, in 1891, executed a deed of conveyance to a certain lot, which Emma P. Cullen owned as her separate statutory estate, to their son, C. F. Cullen; that defendants in their deed to C. F. Cullen bounded said lot on New St. Francis street, and by the arrangements to convey dedicated a certain strip of land in front of said lot to street purposes, and warranted said lot to C. F. Cullen with reference to and as fronting on said strip as a continuation of New St. Francis street; that C. F. Cullen was complainant's grantor, and that defendants obstructed this continuation of New St. Francis street. The bill prayed a removal of the obstruction and a perpetual injunction. On October 29, 1901, the chancellor rendered a final decree, granting the relief prayed for in the bill. Two days later, a motion was made to set aside said decree upon the ground that Emma P. Cullen, one of the respondents in the bill, had died before rendition and filing of said decree. It was shown that Emma P. Cullen died about 6 o'clock on the morning of said decree. On this motion, the chancellor set aside the decree, and the present petition, filed in this court, prays for rule nisi to be directed to the chancellor to show cause why peremptory mandamus should not issue commanding him to vacate the order setting aside the decree. [Ex parte Massie.] (2.) P. J. HAMILTON, for petitioner.1.) Submission concludes the parties.-Davies v. Davies, 9 Ves. 461; Campbell v. Meiser, 4 John. Ch. 334, 341; Bank v. Weisiger, 2 Peters 481; Vroom v. Ditmas, 5 Paige 528; Wood v. Keyes, 6 Paige 472; Dan. Ch. Pr., 1027. The final decree should be antedated, and if there is any process wanted against Emma P. Cullen there could then be revivor.-Wood v. Keyes, supra. (3.) Death of one defendant does not change the duty of the other, and the decree should stand at least against the survivor.-5 Ency. Pl. & Pr., 835; Garrett v. Lynch, 44 Ala. 324. The general rule as to records of equal rank is that fractions of a day are not recognized.--8 Ency. Law et seq.; Wright v. Mills, 4 H. & Ν. 488. The decree of October 27th related back to the first hour of that day, and thus took effect before the death of Mrs. Cullen. C. J. TORREY, contra.-(1.) Mrs. Emma Cullen was the only material defendant, and petition should be quashed. (2.) In judicial proceedings, fractions of a day are regarded.-Powe v. McLeod & Co., 76 Ala. 418; German Bank v. Campbell, 99 Ala. 249, and cases cited therein; 92 Ala. 120, 102. (3.) Decree rendered in lower court was erroneous, and should not be reinstated.-Van Sant v. Weir, 109 Ala. 104; 13 Ency. Pl. & Pr. 536; State v. Fremont, 22 Neb. 313; Taylor v. Cobb, 100 Ala. 603. DOWDELL, J.-The petitioner prays for rule nisi to be directed to the chancellor to show cause why a peremptory mandamus should not issue commanding him to vacate a certain order made by him on November 1, 1901, in the case of Jessie H. Massie v. L. J. Cullen et al. pending in the chancery court of Mobile county, in which a final decree rendered in said cause on Oсtober 29, 1901, was set aside. The petition shows that on October 24, 1901, the said cause was argued and regularly submitted for final decree on the pleadings and evidence. On October 29, 1901, the chancellor rendered a final decree, which was on that day regularly filed. [Ex parte Massie.] On October 31, two days later, a motion was made to set side said decree upon the ground that Emma P. Cullen, one of the respondents in the bill, had died before the rendition and filing of said decree. It was shown that the said respondent, Emma P. Cullen, died about six o'clock on the morning of the day of said de cree. It is contended by petitioner that the doctrine laid down by this court in Powe v. McLeod & Co., 76 Ala. 418, is wrong in principle and should be overruled, and it is further insisted that there should be no distinction in the rule as applied to judgments of the Supreme Court in such cases and to decrees of the chancery court. We cannot agree to this contention, and we adhere to the doctrine as laid down in Powe v. McLeod & Co., supra. It is a general rule that in judicial proceedings, fractions of a day are not regarded, but such proceedings take effect in law from earliest period of the day upon which they originated and came into force, but this general rule is not absolute, and where from the nature of the case justice requires it, fractions of a day are reckoned.-8 Am. & Eng. Ency. Law (2nd ed.), pp. 739-742. The unity of a day and its indivisibility as a period or point of time is a fiction of the law, and is regarded only in promotion of the ends of justice, and never when justice and right will thereby be defeated. This fiction of the law had its origin in the common law, and while the courts of England have generally adhered to it, still in those courts the rule has not been universal in its observance. The courts of this country, however, have been disposed to depart from the rule, and fractions of a day are reckoned where justice requires it. Many cases will be found cited in the notes on this subject in 8 Amer. & Eng. Ency. Law (2nd ed.), on pages 738-9-40-41-42-43, and we content ourselves with reference to these notes without going into any prolonged discussion of the subject. In Patterson's Appeal, 96 Pa. St. 93, it was held that where judgment is entered on the same day, but after the death of defendant debtor, the legal fiction of relation of judgments does not apply, and it is not en [Loyd v. Guthrie.] titled to priority of payment out of the proceeds of the sale of real estate over the claims of general creditors. The doctrine asserted in this case is directly in point and applicable to the case at bar. Our conclusion is that the decree in the present case, having been rendered after the death of Emma P. Cullen, who was a material defendant in the cause, was void, and the chancellor committed no error in setting aside the decree on motion. The petition for mandamus will be denied. Loyd v. Guthrie. Bill in Equity to enforce an Equitable Lien. 1. Equitable lien; when not created by provisions of promissory note; mechanic's lien. - Where one having a mechanic's lien upon a building takes a note from a debtor, payable after the time limited by statute for the institution of proceedings to enforce such lien, and the note, after reciting that it was given for money, material and labor furnished by the payee in the building of a store, then provides that "a mechanic's lien is held on this building to secure the payment of this note," such statement is not sufficient to create an equitable lien or mortgage; but it will be regarded as necessary in the note, to prevent the existing lien from being waived by the lien holder taking a note payable after the expiration of the time for the institution of proceedings to enforce such lien. (TYSON, J., dissenting.) APPEAL from the Chancery Court of Morgan. The bill in this case was filed on August 5, 1899, by the appellant, N. B. Loyd, against the appellees, W. P. Guthrie, Edna Turney, Lucille Turney Clay, Maggie Turney Clay, Ella Turney Willis, and Amos Turney and J. Frank Clay, executors of the last will and testament of Daniel Turney. Edna Turney, Lucille Turney Clay, Maggie Turney Clay and Ella Turney Willis are the only heirs at law of said Daniel Turney. It was averred in the bill that on March 13, 1888, the defendant, W. P. Guthrie, was indebted to the complainant in [Loyd v. Guthrie.] the sum of $1,000, and to secure the payment of the same, he executed to complainant, on said date, the following promissory note, which was signed by the said Guthrie: "Decatur, Ala., March 13, 1888. Twelve months after date, I promise to pay to N. B. Loyd or order, the sum of one thousand dollars, bearing 8 per cent. interest from date until paid, for value received, it being money, material and labor furnished in the building of my store room on Moulton street, block 1, lot No. 24, of New Decatur, Alabama, and a mechanic's lien is held on said building to secure the payment of this note." It was then averred in the bill that in and by the terms of said promissory note, W. P. Guthrie gave to complainant "an equitable lien or mortgage" upon the lot described, together with the building thereon. A description different from that given in the note was set forth in the bill as a correct description of the property which it was averred the parties intended to charge with the lien. After giving a correct description it was then averred in the bill that "the said W. P. Guthrie did not at the time of the execution of said note and does not now own any other lot on Moulton street in New Decatur, Alabama, that at the time of the execution of said note it was clearly understood between the orator and said W. P. Guthrie that orator was to have an equitable lien or mortgage upon said lot and the building thereon as security for the payment of said note." It was then alleged in the bill that subsequent to the execution of said note, Guthrie had executed a usurious mortgage to Daniel Turney, who was deceased at the time of the filing of the bill; that the defendants, Amos Turney and J. Frank Clay, were his executors, and that all the other defendants except Guthrie claimed some interest in the property. * * *, and The prayer of the bill was that the description of the property as found in the note be reformed, so as to properly describe the property which was intended by the parties to be charged, and that a lien be established in favor of the complainant on said lot and the buildings thereon for the amount due complainant, and that |