
    *Executors of Daniel Waymire v. Andrew Staley and others.
    Preference of liens.
    This was originally an application to the court of common pleas of Montgomery county, to distribute moneys made upon execution by the sheriff among different claimants. It was brought before this court by certiorari, and adjourned here for decision from, the Supreme Court sitting in Montgomery county. The case was this:
    At February term, 1823, Andrew Staley obtained judgment against Daniel Yount for five hundred and five dollars and fifty-four cents, debt and costs. Fi. fa. issued March, 1823, and returned stayed, by plaintiff’s order, and was regularly issued to each succeeding term, and returned in the same manner, until March, 1825, when it was returned levied upon various chattels, and on a writ of vendi. ex. to June, 1825, one hundred and forty-nine dollars and sixty-two cents was returned made. A new writ of fi. fa. was issued to November, 1825, March and July, 1826, returned nothing found; and upon a writ issued November; 1826, a levy was made upon lands, out of which the money in the sheriff’s hands was made.
    David Halloway, at March term, 1824, recovered two thousand one hundred and forty-eight dollars and ninety cents, against the same debtor. A fi.fa. issued November, 1824, was levied upon real estate, which was valued, and the writ returned not sold for want of bidders. A vendi. issued to May term, 1825, was returned with the same indorsement. At the same term the valuations were set aside, and a new valuation ordered, which was had upon a vendi. issued to October term, 1825, and a return indorsed of one thou.sand six hundred and seventy-nine dollars and twenty cents, made by a sale of the property, which sale was confirmed by the court. New writs of fi. fa. were issued to May- and September terms, 1826, and returned nothing found. A writ, dated October, 1826, was levied on the property, which was sold for the money in the sheriff’s hands to be distributed.
    At November, 1824, James Mendenhall recovered a judgment against Yount for two hundred and twenty-four dollars and *fifty cents, debt and costs. In J une, 1825, fi.fa. issued, returned to November term, levied on a lot of land, and sold for twenty-three dollars, and nothing found to levy further. Similar and successive writs were issued to all the terms in 1826, and returned in the same manner. A fi. fa. issued October, 1826, was levied upon the same land with the other writs enumerated, and a part of the money was claimed to satisfy this judgment also.
    October term, 1826, Dodd and Parkinson recovered a judgment against the same debtor, for one hundred and thirty-eight dollars and twelve cents, debt and costs. A writ of fi.fa. was issued to the first term in 1826, and returned nothing found. Another writ of ft. fa. was issued in October, 1826, which was levied on the same property, and claimed also to be paid out of proceeds of the sale.
    At February term, 1826, the executors of Waymire obtained their judgment for one hundred and fifty-five dollars and thirty-two cents. Execution issued to May and September terms of the same year, and returned nothing found. Another ft. fa. issued in October, and was levied as the others, and the proceeds claimed as in the other cases. All these latter writs were dated on the same day, October 26, 18.26, but that in favor of Halloway, was first put into the hands of the sheriff.
    Stoddart, for Waymire, Staley, and Mendenhall.
    Holt, for Halloway.
   By the Court :

This case is decided, we conceive, by the judgment of this court, in the cases of McCormick v. Alexander, and Patton v. Sheriff of Pickaway. Waymire’s judgment is the only one, of all who contend for this money, that was levied on the property in question within the year. By section 17 of the act of 1824, a preference is secured to it, because none of the other judgments were levied on this property within one year from the time they were rendered. In Patton’s case, it is settled that a levy upon other property does not take the case out of the provisions of section 17 *and we are satisfied it is rightly settled. In the same case, it is settled that section 4 of the act only applies to cases where the liens of the contending parties are equal, and does not touch a case, where, upon other principles, one party has a preferable lien. Waymire must, therefore, be first satisfied.

No one of the other judgment creditors having levied execution upon the property in dispute within twelve months from the rendering of their judgments, their liens are equal; and Halloway having put his execution first into the sheriff’s hands, has thereby obtained a preference next to Waymire, under the provisions of section 4. Between the others an equal distribution must be made. /  