
    Calvin McCombs v. Charles Howard and others.
    H. contracted to W. a piece of land, to be paid for in iron ore. Before-payment.'was made, T., a creditor of H., attached the land and garnished. "W., who then brought a suit against H. and T. to obtain a conveyance of the land, and had a receiver appointed by the court, to whom he delivered the ore for the benefit of the party entitled thereto. Afterward, M., another creditor of H., garnished V. and the receiver, and after judgments-had been obtained b3 both T. and M., the latter brought a suit in equity against all the parties above named, to subject the ore to the payment of his judgment against H. W. afterward obtained a decree against H. and" T. for the land, and was discharged from the contract, leaving the ore in-court to be appropriated according to the rights of the parties. Meld, that, whether the several garnishments were of any validity or not, T., by virtue.of Ms attachment of the land, had the prior equity, as against M., to have-the ore appropriated on his judgment against H.
    Abpeal. Reserved in the district court of Mahoning county.
    *The facts are sufficiently stated in the opinion of the court. [428‘
    
      F. E. Hutchins, for plaintiff:
    1. The garnishment of Warner by Tod & Ford:
    (1.) It did not create any lien upon the ore which Warner was thereafter to deliver, nor any right which could be worked out in rem upon or through the ore, or its proceeds, no matter what rights it might give the attaching creditor against Warner personallyr, on account of his answer or refusal to answer. S. & C. 1005, et seq., secs. 200, 205, 217; Burnet v. Whitney, 12 Ohio St. 358; Drake on Attachment, secs. 222, 414, 415, 424, 439-447, 498; 7 Mass. 438; Ward v. Howard, 12 Ohio St. 165; 16 Mass. 62.
    If Tod & Eord did not acquire a lien by their garnishment, nor •¡the court thereby a jurisdiction in rem, but this was only acquired by the delivery by Warner, and the extinguishment of -his -right, then, before that time, the plaintiff’s right intervened, by reason of his garnishment of McEwen, the receiver, and the lien or claim of Tod & Ford, and the jurisdiction of the court, subsequently acquired, were necessarily subject to the plaintiff’s rights.
    (2.) Even if this garnishment of Warner, or the delivery of the •ore and the termination of Warner’s right, did have, originally, any effect in creating a lien upon or subjecting this particular prop-ei'ty, I claim that it has been abandoned and lost. To suffer the property to remain for years, with no visible evidence of its being •under attachment, and nothing to show it but the prior garnishment of Wárner, is to abandon and lose every right, if any existed ■•under such garnishment. ,
    (3.) Neither on the 9th day of July, 1858, nor at any time since 'then, has Howard had any right or claim which he could enforce .against Warner under that contract, either on account of the ore or goods, or by reason of Warner’s being indebted to him; and a -creditor of Howard can stand in no better light in this respect than he could, and this garnishment of Warner conferred upon "'Tod & Ford no right or lien upon this ore or its proceeds. And even if it did give them an inchoate right which might have been mosecuted to some result, even that has been lost and abandoned, 424] as against intervening rights. *Drake on attachment, secs. 523, 525-529, 543; Statutes, secs. 214, 215, 217, 218; 2 Mass. 96, 524; 4 Mass. 102, 235; 14 Pick. 550; 1 Mass. 471; 12 Pick. 105 ; .*3 Mass. 33-68 ; 22 Pick. 563; 6 Maine, 263; 13 Vt. 421; 8 Cush. 518; 11 Mass. 488; 16 Mass. 431; 3 Pick. 65; 11 Pick. 101, 473; 2 Met. 352; 13 Met. 332; 3 Gray, 277; 7 Gray, 491; 10 Pick. 205; 3 Met. 301; 3 Cush. 390 ; 16 Mass. 522 ; 1 Cush. 490.
    2. Have Tod & Ford any subsisting right by reason of their .specific levies upon the ore while in the hands of the receiver? My propositions upon this point are :
    (1.) The ore was at that time in the hands of the receiver, and -could not -be -attached; first, because it was in custodia leáis: and, second, because, being in the possession of the receiver, no such possession of it could be taken by the officer as would support the attachment. 7 Paige Ch. 513; Drake on Attachment, sec. 245-247, 265-278, 388-391; 9 Ves. 336; Huckley’s Ex’r v. Swigert, 5 B. Monroe, 86 ; 2 Story’s Eq., secs. 833-891; 5 Paige Ch. 131; 3 Paige Ch. 199; 8 Paige Ch. 137; 9 Paige Ch. 372; 5 Maine, 269, 272; Wiswall v. Sampson et al., 14 How. 52 ; 5 Mass. 157, 163; 13 Mass. 114; 14 Mass. 269; 4 Pick. 395; 5 Met. 111, 113; 4 Cush. 425; 6 Gray, 300; 12 N. H. 502 ; 7 Conn. 271; 18 Maine, 231; 19 Maine, 92; 22 Maine, 337.
    (2.) At the time the second levy was made by Tod & Ford, the •ore was in the custody of the receiver, who had been garnished by McCombs on account of it, and had answered. And even if they could and did make a valid attachment, yet any right they thus acquired was subordinate to that proceeding. 17 Pick. 289; 1 Mass. 466, sec. 1.
    (3.) Even if there could be and was a valid attachment made, originally, the same has been lost and abandoned. It appears as matter of fact from the sheriff’s return, that he did not in fact take, nor did he attempt either to take or hold, any possession of it. His return on the first writ is: “Ileft the property attached where I found the same, by consent of David Tod;" and on the second: “I left the property attached where I found the same." Drake on Attachment, secs. 219, 220, 238, 239, 253, 265, 270, 388-394; Code, sec. 211; 7 Mass. 505; 14 Mass. 190; 4 Pick. 395 ; 5 Met. 111; 4 Cush. 425; 7 Conn. *271; 18 Maine, 231; 19 Maine, 92, 435; 22 Maine, 337; [425 7 Vt. 403; 5 N. H. 527; 1 Pick. 389; 5 Maine, 265; 10 Maine, 27 ; 12 Maine, 396 ; 5 Binn. 457 ; 9 Pick. 441; 22 Vt. 203.
    I submit that neither by the garnishment of Warner, nor by their attempted specific attachments, did Tod & Ford acquire any xight to this ore or its proceeds, which can be' sustained against pfiaintiff’s garnishment of the receiver and the purchasers of the '■ore, or the present creditor’s bill; and that, inasmuch as they had acquired no lien, and as there are no other claimants, the plaintiff is entitled to the fund in controversy, and an order that the receiver pay it over to him.
    Counsel speak of having attached the land which Howard agreed to convey to Warner, and that Warner might elect to abandon the land, and then Tod & Ford would have held it under their attachment ; or he might elect to deliver the ore, and then they would have held that; and by putting the two together, proceed with the-argument as though, by thus joining the two claims, they m’ade one stronger than either would be separately. And yet it is difficult to perceive how the attachment of the land could*even help to-create a lien upon the ore.
    Their claim must stand or fall with their garnishment of Warner and levies on the ore, and can not receive support from the fact that they attached something else, and failed to get it.
    As to the point made that eight hundred and seventy-eight tons-of this ore was delivered by Warner to the receiver after he was-garnished, I say, first, that under our statute, differing from the former rule, the garnishee is held for property in his hands after the garnishment (secs. 205, 217) ; and, second, that whether so or-not, Tod & Ford have no claim to it for the reasons before given,, and if they have not, this ore and its proceeds are subjected to> plaintiff’s claim by this action.
    Hitchcock, Mason & Estep, for Tod & Ford:
    1. This whole proceeding is irregular, and plaintiff can take-426] nothing by his suit. The fund sought to be reached *must be-distributed in the suit' and court in which it accrued. That suit is-still pending in the court of common pleas.
    Again, the parties in this and the original suit are not the same.. Material parties in that are omitted here, while many new parties-are made here.
    Again, the proceeding in this case is against the receiver and creditors,.but the fund sought for is in court.
    2. Upon the facts in the case, the right of Tod & Ford to the-sixty-two tons of ore is conceded, and we contend that they are entitled to the whole for the following reasons : .
    (1.) The attachment and garnishee process on Warner, served July 8, 1858, gave Tod & Ford, from that date, a lien upon all-Howard’s “rights and property’’ in said land, the contract therefor, and the ore to be delivered thereon. They succeeded to all the-rights of Howard therein until their debt should be paid, or as-security therefor. Code, secs. 189, 194, 200.
    (2.) The receiver (McEwen) held the ore, by the very terms of the statute, for the benefit of the several attaching creditors in the-order of their respective liens thereon. No other order could legally be made. The prior creditor is fully paid, and Tod & Ford .■áre the next attaching or garnishing creditors, and, of course, appropriate the ore or its proceeds to the payment of their debt.
    3. The plaintiff gained nothing, and acquired no lien by his garnishee process pretended to be served on McEwen and Warner, •October 9, 1858, which, in fact, is the basis on which this suit rests.
    (1.) The process and notice was never served on Warner, nor •does it appear that he ever had notice of it in any form. Acceptance of service by an attorney is not sufficient service in such case. •Code, sec. 201.
    (2.) If McEwen was properly served, and answered, the plaintiff thereby acquired no rights to the ore as against Tod & Ford, because Tod & Ford had a permanent prior lien thereon; and McEwen held the ore for the benefit of all the garnishing creditors in the order of service of notice.
    (3.) McEwen, the receiver, never had actual possession of the *ore, and hardly constructive possession; and mere con- [427 'structive possession of the ore was not sufficient to subject the receiver to garnishee process in respect thereof. Code, secs. 198,200; Drake on Attachment, 528, 529. Nor will the service of garnishee process on one having only a constructive possession give any lien .upon the property itself.
    (4.) It has been claimed that a copy of the. order was served^ on McEwen, as an officer of the court, under the last clause of the code, section 200. To this, we reply that he was not one of the officers •therein named, nor one of the class therein named.
    (5.) Without the aid of an express statute, property or funds in ■the hands of a court, its agents, and officers, can not be reached by garnishee process.
    If either of the above positions is correct, the plaintiff took nothing in any part of the ore by his garnishee process.
    ' (6.) But if incorrect as to the whole, it is perfectly clear that, as to the 878 tons of ore delivered after October 11, 1858, the date of plaintiff’s second attachment, he took nothing by it.
    4. Tod & Ford acquired a valid and permanent lien upon all the '■ore by the actual seizure of the same by the sheriff of Trumbull ■county, May 16, 1859, under their alias order of attachment. It was then “ come at,” and actual possession taken according to the statute. Their lien then became perfect and paramount.
    ■ 5. The plaintiff acquired no priority in the distribution of this -fund, by the filing of his petition in this case, treating it as a creditor’s bill. And it lacks the allegation essential to such bill. If), however, well framed, the priority conld not be allowed for the following reasons:
    (1.) It was posterior in date to the garnishee process of Tod & Ford, served July 9,1858, also to the seizure under their alias order of attachment, May 16,1859, and to their assertion of their claim, to the proceeds of the ore, in the suit of Warner v. Howard (which is as good a creditor’s bill as this of the plaintiff).
    (2.) The fund sought to be distributed arose from a sale of the ore-under an explicit agreement to which the plaintiff was a party, that. 428] the proceeds thereof should be distributed according *to the-then existing liens and equities, and not according to priorities subsequently to arise. No party to that agreement could acquire any pi’iority over the other parties by any subsequent proceeding.
    (3.) It is a fund in court for distribution, and that must he made-by the court having the fund in its hands, and according to the equities and priorities existing at the time it came into its hands,, if any.
    
      B. F. Hoffman, also for Tod & Ford:
    McCombs seeks to gain priority of lien on the ore or its proceeds.. Tod & Ford claim it by virtue of their prior attachment of the-land, and garnishee process served on Warner, and by levy on the ore itself afterward.
    The attachment of Tod & Ford upon the land and title of Howard, and their garnishee process and notice served on Warner, the contractee and debtor of Howard, on account of the land, gave Tod & Ford a lien on the land or its accruing consideration and pay due-from Warner, so that Tod & Ford’s lien is prior and to be preferred, unless they have lost it. They have not lost their lien, for their suit is still pending, ready for an order, or any proper proceeding to reach the fund.
    
    A suit against Warner for not answering as garnishee, would have been proper, had he not answered by a suit himself, in advance, and to which Tod & Ford became pai’ties, and in which Warner has discharged himself by placing the fund or thing due from him in the hands of the court and its receiver, to bo disposed of as the attachment and adverse claims and lienB may require. Warner’s suit is still pending, and the other claimants are still parties thereto, in proper position to interplead and show who has liens and priorities. That suit was all that was needed. This suit of McCombs was entirely unnecessary; and it was a violation of the-agreement to undertake, by a garnishee process against the purchasers from the receiver, to attach the proceeds of the ore, and get. a lien that did not exist before, if possible. TJ nder that agreement,, the liens of the parties, if they had any, were fixed, and should stand as they there stood.
   *Day, C. J.

This case was reserved for decision here upon [429* the facts found by the district court.

It appears that on the 5th day of March, 1858, Jonathan Warner and Charles Howard entered into a written contract, by which it was agreed that Warner should sell and deliver to Howard, on the bank of the Pennsylvania and Ohio Canal, at Niles, in the county of Trumbull, not less than four hundred nor more than seven hundred tons of iron ore each month during the following season of canal navigation, at $2.40 per ton ; and not less than four hundred nor more than eight hundred tons per month during the canal navigation season of 1859, at the same price; and that Howard should pay for the ore thus delivered by a stock of goods (subsequently invoiced at $5,005), and by the conveyance to Warner of certain, real estate, owned by Howard and valued at $5,500, and by pig-iron to be delivered to Warner at Pittsburg prices.

They agreed to have a settlement at the close of each month, and to apply, from the purchase price of the goods, one dollar on each ton of ore delivered, and that the remaining dollar and forty cents per ton should be paid in pig-iron; and so continue until the price of the goods was exhausted ; then the price of the land was to be applied in the same manner.

Howard turned over the stock of goods to Warner, who commenced delivering the ore. About July 5, 1858, Howard failed and absconded, without any further performance of the contract on his part.

July 7, 1858, McCombs procured an attachment against Howard, but did not attach his real estate, or the ore, nor, at that time, garnishee Warner.

July 8,1858, Tod & Ford sued out their attachment against Howard, and levied on said real estate, and the ore (about sixty-two tons) then delivered under the contract; and, on the requisite affidavit and process, garnished Warner. Nothing further has yet been done in that case on this garnishment.

July 9, 1858, Warner filed his petition in the same court, setting forth his contract with Howard, and showing reasons why ho should be allowed to'fulfill it, and asking the court to authorize 430] him so to do, and specifically to execute the contract. *He also stated in his petition that “ creditors of said Howard have procured attachments to be issued against the goods and property, effects and credits of said Howard, from this court, and have caused the same to be levied on the property and credits of said Howard, .and have made plaintiff (Warner) garnishee therein, and served him with notice as such garnishee ; and, not being fully advised as to the ultimate legal effoet of the same, and upon his rights to proceed, notwithstanding the same, to complete his said contract and deliver said ore, nor as to the legal effect thereof in ultimately determing the right and property of the ore delivered, in the event of the court refusing to make the final order and decree herein prayed for, he asks that a receiver be appointed to take possession of said ore as it is delivered, and to hold the samo in his possession, ■subject to the order of this court, until a final hearing of this cause, .and other actions wherein he has been, or may bo, garnished with •reference to said ore, or the delivery thereof.”

Thereupon, on the same day, James McEwen was appointed and ■qualified as receiver, and entered upon the discharge of his duties.

July 9, 1858, Tod & Ford caused an attachment to be issued in this case, to the sheriff of Trumbull county, who, on the 12th of July, attached seventy tons of ore, as Howard’s, appraised it and made return in due form, adding thereto that he left the property whore found by consent of David Tod.”

October 11, 1858, McCombs, in his suit against Howard, began July 7, 1858, sued out an attachment against Howard, and garni■■sheo process against Warner and McEwen. McEwen was duly ¡served on the same day. Warner was not served otherwise than by the attorney of Warner (being also the attorney of McCombs) ¡accepting service for Warner.

October 12, 1858, McEwen, the receiver, filed his report in the Warner case, stating that on the 13th day of July, 1858, he took possession of sixty-two tons of ore subject to the previous attachment of Tod & Ford, being all then delivered by Warner; and that Warner had subsequently delivered at Niles, Trumbull county, 1,792 tons of ore, which was then in his custody.

■431] *At the February term, 1859, of the Mahoning common pleas, where all the cases before mentioned were pending, Tod &’ Ford filed in the Warner case a motion to be made parties thereto, claiming thereby that they were “ interested in the controversy in the action, and in the real estate, contract, and property therein involved and, as the ground of their claim, set forth the indebted ness of Howard to them, the pendency of their action against him, .■and the attachment proceedings therein, by virtue of which they allege that on the 8th day of July, 1858, the “ real estate in the petition described was in due form attached to answer the claim of .said Tod & Ford; and, on the same day, notice was duly served upon the said Warner to charge him as garnishee of said Howard, under the contract in the petition mentioned.”

At the same term, the court ordered this motion to be made part of the record in the case ; “ and, on hearing the matters, and satisfactory evidence being given, the court find that said Tod & Ford are interested in the controversy in this action, as in their motion, ■stated,” and thereupon grant the same; whereupon they entered their appearance as defendants.

Leave was then granted to Warner to file an amended petition, and to Tod & Ford to answer thereto. The amended petition was filed, and Howard, also Tod & Ford, on the 13th of May, 1859, filed their answers thereto, resisting Warner’s claim for a specific performance of the contract. ■

At the May term, 1859, of the common pleas, Warner obtained a decree from which Howard and Tod & Ford took an appeal to the district court.

At this term (May, 1859), both McCombs and Tod & Ford obtained judgments in their respective suits against Howard — McCombs for $9,830.18, and Tod & Ford for $7,779.37 — and both cases, as to the attachment proceedings, remain continued without any order, in either case, against the garnishees or attached property.

May 16, 1859, Tod & Ford, in their case against Howard, caused .a second order of attachment to be issued to the sheriff of Trumbull county, who, on the nest day, attached about two thousand tons of ore in Trumbull county, but returned, left the property attached where I found the same.” This *was .the same ore [432 delivered by Warner, and claimed to be held by the receiver in his case.

May 23,1859, the receiver made a further repoi’t, stating that he had received, including the ore mentioned in his former report,. 2,689 tons of ore, 878 tons of which was delivered by Warner after the garnishment in the ease of McCombs.

May, 1860, all the parties in interest, including McCombs, and Tod & Ford, entered into a written agreement that the receiver should soil the ore in his hands; but it was stipulated that “ such sale shall be without prejudice to any of the rights of any of the parties, but the proceeds shall be deemed and held the representative of said ore, and the rights of the parties shall attach thereto, as to said ore, if not sold, and said proceeds shall be disposed of by the judgment and order of the court, as the rights, claims, and. liens of the differemt parties in and upon said ore may be determined.”

October 18, 1860, the receiver sold the ore under this agreement —500 tons to Brown, Bonnell & Co., for $1,100, and 1,848 tons to-Wood, Warner & Co., for $3,788.65, and took notes therefor.

August 14, 1861, McCombs brought the present suit against Howard, Tod & Ford, M.cEwon, Warner and others, to subject the-avails of the ore to the payment of his judgment, and in which an order of attachment was issued, and Brown, Bonnell & Co. and Wood, Warner & Co., were garnished. They answered, admitting their indebtedness to the receiver.

In 1861, at the September term of the district court, the Warner-ease was tried, and the court found that, before and after the commencement of the suit, ho had fully paid for the real estate in ore,, and decreed a conveyance of the land to him. The court ordered that, out of the proceeds of the ore in the hands of the receiver, a. small amount be applied in satisfaction of a mortgage on the land, hold by another party; and that the “case be remanded to the-court of common pleas, to abide its further order as to the disposition of the residue of said proceeds.”

At the February term, 1862, of the common pleas, to which the eause was remanded, the caso was ordered to the execution docket; 483] but at the next term, May, 1852, on motion of *Tod & Ford,, it was reinstated on the calendar of the common pleas, where it remains and is still undisposed of.

May 26, 1863, Tod & Ford filed their motion in the Warner case-for the distribution of the funds in the receiver’s hands, and on the 17th day of August, 1864, filed their cross-petition in the same-case, making McCombs a party defendant, stating substantially the foregoing facts, claiming said proceeds by prior lien, and praying, distribution thereof to them. To this cross-petition, McCombs, by his attorney, waived process, and entered his appearance.

The case now before us was appealed to the district court, and. by that court reserved for decision in this court.

It is claimed on the part of Tod & Ford, that the proceedings in-this case are irregular, for the reason that it is sought to distribute-a fund held in another case, where the equities and priorities of the parties may be more properly determined. There is, perhaps, force in this objection. But this case was brought in the same-court in which the other was pending, and all the parties having any interest in, or control of the fund, are parties in this case. The courts below have assumed to control the fund in this case, and it comes here upon a finding of facts relating to the rights of the parties, as fully as if the proceedings below had been confined* to that case instead of entering into this. The manner in which the whole controversy comes before us, is but an irregularity at most, and may be disregarded by this court, as it was by the courts-below, for all the rights of the parties in that case may be equally well considered and protected in this.

It is conceded that, as the ease now stands (the interests of other-parties having been otherwise adjusted), the entire fund in controversy must be applied upon either the judgment of McCombsagainst Howard, or on that of Tod & Ford against the same party, for either judgment exceeds the amount of the fund, and both parties claim it; the question is, which of them is entitled to it.

Under the agreement of the parties, their rights to the proceeds-of the ore held by the receiver, are to be determined as if the ore-still remained in his hands.

*The several quantities of ore that came to the hands of [434 the receiver, were proceeds of the contract of Howard with Warner. About sixty-t-wo tons were delivered to Howard as required by the contract, before the commencement of any of the proceedings in relation to it. This ore was attached as Howard’s, by Tod & Ford, in their suit against him, and this was the first proceeding of any kind against it. The same ore was subsequently taken by the receiver in the Warner case, and was held by him expressly subject to this attachment. A subsequent garnishment of Warner by other parties could avail nothing, for he had parted with the-«ore; and the proceedings against the receiver did not change the -prior liens under which he held the ore. It follows that Tod & Ford have the prior right to this sixty-two tons of ore.

Questions of more difficult solution arise, in determining the priorities of the parties to the ore delivered to the receiver subsequent to their respective proceedings in attachment.

Both parties are judgment creditors of Howard; to that extent their equities are equal. They seek to work out their priorities through their various proceedings in attachment, and through the two civil actions, based on equitable claims respecting the ore in '•controversy.

If anything was gained by their respective garnishment of Warner, that of Tod & Ford, being prior in’time, was prior in right. For this reason, it is claimed on the part of McCombs, that the claim of Howard against Warner was not subject to garnishment, because it was for the payment of property other than money, and'was, moreover, dependent on such contingencies, arising -on an executory contract, that it could not be enforced.

If this objection to the garnishment of Warner be well taken, it .applies with equal force to the garnishment of the receiver by McCombs, if, indeed, that were at all allowable; for the ore, in the hands of the receiver, was, at that time, held by him subject to the ■same contingencies that attended it in the hands of Warner.

The same objection exists against obtaining a lien on the fund 435] in the hands of the receiver by McCombs, through this *suit, which was brought before the rights of Warner and Howard, and 'Tod & Ford were settled in the Warner case. Moreover, if a lien ■was so acquired, it must remain subordináte to the equities existing against the fund when the suit was brought. At that time the fund was in court, in a case where Tod & Ford were parties, asserting a ■ claim thereto, based on as broad grounds, to say the least, as any .asserted by McCombs in this case.

But in addition to any ground of claim to priority in behalf of McCombs, Tod & Ford had attached the land contracted to Warner ■by Howard, which was in controversy in the Warner case, and out •■of which the fund in dispute arose. This attachment was anterior to .any proceedings by McCombs on which he bases his claim to ■priority. It therefore becomes material to inquire what, if any, «equities were acquired by the attachment of the land.

Under the provisions of the code all the rights of Howard in the land were subjected, by the attachment, to the payment of the debt .of Tod & Ford in the suit against him, for Howard then had the.legal title, subject only to his contract with Warner. According to-the terms of that contract, nothing had been paid for the land; for-no part of the ore was to be applied in payment of the land until the goods were fully paid for, at the rate of one dollar for each ton of ore delivered; and the quantity delivered was insufficient to pay' for the goods at that rate of payment.

But, if as between Warner and Howard (as it seems to have been.held in the Warner case), the whole price of the ore might, inequity, be applied in the payment of the goods first, and then of the land, it appears that, when the land was attached, there had' not been enough ore delivered to pay for the goods then in Warner’s-hands, without including the sixty-two tons of ore attached by Tod & Ford. And if the sixty-two tons bo included in payment.of the goods, it would leave but about five tons to be applied in-payment of the land.

At law, the title of Howard in the land remained unaffected by the contract, and Warner had acquired only a right of action for a breach of the contract, in case it was not ^performed. But, [436.--in equity, Howard held the title in trust for the pi’ice agreed to be paid for the land. Since, then, the price remained wholly, or substantially unpaid, Howard, at tfie time of the attachment, held both> the legal and equitable title to the land; for it is settled that, as a-general rule, the purchaser, under a contract for the sale of land,, before conveyancó, “ has neither legal nor equitable right, as against. the seller, until he pay the purchase money.” 1 Hilliard on Vend. 9; Brush v. Kinsley, 14 Ohio, 20.

The attachment, holding all of Howard’s rights in the land, rendered it impossible for him to perform the contract, and therefore • inequitable for him to receive the purchase price. Warner was, therefore, compelled to resort to his action against Howard and Tod & Ford, and to bring into court the property to be delivered by him for the land, and to have the rights of the parties adjudicated in accordance with the principles of equity.

Warner could not, in equity, obtain a title to the land without-’ payment of the purchase price; and the court, in deciding in his -■ favor, must have regarded the bringing of the fund into court as-equivalent to payment by Warner, and must have regarded the-fund thus paid as held in court for the benefit of the party equitably,' •entitled thereto; and so proceeded to decree the land to Warner, .-and to discharge him from the contract.

When, therefore, Warner obtained his decree for the land against Howard and Tod & Ford, the fund in court arising from the land remained to be disposed of between the other parties. This the •court failed to do in that case, but expressly left the question open, and now it remains to be done in this case, but upon the same principles that would have controlled in that case upon the same •state of facts that are found in this.

Howard and Tod & Ford were the only remaining parties that had any interest in the land from which the fund arose. Tod & Ford had obtained a judgment against Howard for an amount exceeding that of the fund. As between them, the right of Tod & Ford to the fund can not be questioned; for Howard had no more 437] equitable right to the fund arising from *the land after the ¡attachment than he would have had if it had arisen by a sale of the land on final process, to satisfy the judgment, for which puiv pose it was attached and held.

It was only through the equities of Warner that the land had been -decreed away from Tod & Ford. Indeed, Warner could not have taken the land from them without first perfecting his equitable right thereto, by payment to them of the amount due when the land was attached; for, as against Howard, they were entitled to "the fund, and, as against Warner, they were entitled to receive it, “by reason of their holding this equitable right to the purchase price ■on yielding up the title to the land held by their attachment.

Since, then, Warner, in order to secure his equitable rights under the contract, was bound to make payment to Tod & Ford by reason ■of their attachment of the land, it follows that their equitable right to the fund began when the attachment was levied. This was long before any of the proceedings on which McCombs bases his claim to priority.

Moreover, whatever McCombs has gained by his proceedings in .garnishment or in equity, is only through Howard, and through Warner as the debtor of Howard. He could not, on the one hand, thereby supersede the then existing rights of Tod & Ford against them, nor, on the other, gain any better right against Warner than that of Howard against him. As between Warner and Howard, the former had the right to use the fund to obtain his equitable xights under the contract, and Tod & Ford, as against them both, were equitably entitled to receive the same fund, on yielding their rights in the land, out of whic'h it arose-after it was held by their legal lien.

At best, McCombs but succeeded to the rights of Howard -and W arner, and stood in no better condition than they did against Tod .& Ford.

It follows, from what has been said as to the rights of those parties, that, as against McCombs, Tod &Ford have the prior and better right to the fund in controversy.

This view of the case renders it unnecessary for us to determino the numerous questions raised upon the other proceedings in attachment and garnishment, which have been discussed in argument.

*A decree will be entered in favor of the defendants, Tod & [4U8 .Ford, or their representatives, as they now stand on the record.

Brinkerhoff, Scott, Welch, and White, JJ., concurred.  