
    Gorrell v. Kelsey.
    S. purchased certain real estate at Master Commissioner’s sale. An execution in favor of M., a judgment creditor of S., was levied on the premises before S. had possession or a deed of the same.
    
      Held: That M.’s levy was invalid; and that K., another judgment creditor of S., in whose favor an execution was levied on said premises after S. had possession and a deed of the same, acquired alien thereon, and should be first paid out of the proceeds of the sale thereof.
    Error to the District Court of Belmont County.
    Upon affidavit that the controversy therein was real, and that the proceedings in the case were in good faith, and to determine the rights of the parties, the following agreed statement of facts and submission of case, was filed June 26, 1879, in .the court of common pleas of Belmont County, to wit.:
    
      “Edmund G. Morgan v. James Kelsey.
    “Now come Edmund G. Morgan and James Kelsey, the parties in this case, and, on the following agreed statement of facts, submit to the court a certain matter in controversy between them as to which has the -prior and better lien on a certain piece and parcel of land hereinafter described.
    “ The facts material to the question are agreed to be as follows:—
    “ At the fall term of this court A. D. 1877, said Morgan recovered a judgment against one Samuel A. Shupe for the sum of $1,230.16, and interest at 8 per cent, on judgment, which judgment is in full force and wholly unpaid.
    “On July 17,1878, in a suit-begun in this court April 10, 1878, on a joint and several promissory note, said Kelsey took judgment against said Samuel A. Shupe for the sum of $971.45, %nd $14.66 costs, and said judgment is still in full force and wholly unpaid/ The original summons against said Samuel A. Shupe was returned, not served; and an alias summons issued for him, June 5th, 1878, and was returned, served. The term of court commenced April 23d, 1878. Said Shupe was surety on said note, and was so certified. The principal had no property subject to execution.
    “ On June 5th, 1878, certain premises, to wit.: forty-five (45) feet off the West end of lots nine’ (9) and ten (10), of Block four (4) in the city of Bellaire, County of Belmont, and state of Ohio, were returned to this court as sold, under an order of sale issuing therefor, to the said Samuel A. Shupe for the sum of $1,600; and on July 17th, 1878, said sale was confirmed by this court, and the Master Commissioner making the sale was ordered to make a deed for said premises to said Shupe on the payment by him of the purchase money.
    “ At the date of the decree for the sale of said premises, said Shupe was the owner and holder of a mortgage lien thereon for over $2,000, subject, however, to prior liens amounting to between $500 and $600; and on July 18th, 1878, said Master Commissioner received the check of said Samuel A. Shupe, drawn on a bank in Columbus, Ohio, for the amount of the purchase money not coming to said Shupe (about $521); and the same was duly forwarded to Columbus, and paid on presentation ; and the deed for said property was delivered to said Samuel A. Shupe on August 2d, 1878, and dated August 1st, 1878; and on August 1st, 1878, said Shupe took possession of said property, and has kept the premises ever since.
    “On July 20th, 1878, execution issued in favor of said Morgan on his judgment against said Shupe, and on July 22d, 1878, said execution was duly levied by the sheriff of said county on the premises before described as the property of said Shupe.
    “On August 13th, 1878, execution was issued on said Kelsey’s judgment against said Shupe, and on the next day said execution was duly levied upon said premises.
    “ On both said executions the sheriff made return of no sale for want of time.
    “A vendí exponas was issued in case of Kelsey v. Shupe on February 18th, 1879; and in the case of Mprgan v. Shupe on March 11th, 1879; but said property did not sell when offered on account of the uncertainty as to which of said parties had the prior lien; and said property is now advertised for sale under the judgment of said Kelsey. Said parties desire the decision of this court as to which has the prior lien upon said property, or upon the proceeds thereof, if sold.”
    Said property was afterwards sold, and the court of common pleas adjudged, as conclusion of law, that said Morgan had by his said judgment and levy, a lien upon the real estate described in the agreed statement, prior to the lien thereon of the judgment and levy of said Kelsey; and that after payment of costs, the sum due upon said judgment of Morgan be first paid out of the proceeds of the sale of the real estate aforesaid. °
    
      After the proceedings in the court of common pleas, the said Morgan deceased, and the said James B. Gorrell was appointed and qualified as the administrator of his estate. On petition in error, the district court adjudged that said Kelsey by virtue of his said judgment and levy had the first lien, and prior to that of said Morgan, upon said real estate, for the payment of said judgment; and that the sum due on said Kelsey’s judgment, with original and increase costs, and interests, be first paid out of the proceeds of said sale; and that the remainder, if my, be paid upon said judgment of said Morgan.
    It is asked, that the judgment of the district court be reversed, and that of the court of common pleas be affirmed.
    
      Rees £ Gfallaher for plaintiff in error:
    Cited 6 Ohio, 156 to 162; Jachnan v. HallocJc, 1 Ohio, 318; Baird v. Kirtland, 8 Ohio, 21; Rev. Stats., §§ 5, 375; Gw'ynne on Sheriffs, 313, 386.
    
      J. B. Smith and St. Glair Kelly for defendant in error.
   Dickman, J.

Neither the judgment of Kelsey nor that of Morgan was a lien on the premises which were thereafter conveyed.to Shupe by the master commissioner. “The existence, validity, and extent of a judgment lien are mat-' ters purely legal, dependent upon statutory provisions.” Douglass v. Huston et al., 6 Ohio, 162. The interest which a judgment may bind must be one which can be levied on and sold to satisfy it. Roads v. Symmes, 1 Ohio, 314. Shupe did not take possession of the premises until August 1, 1878, and the deed of that date was delivered to him August 2, 1878. Until delivery of the deed, his rights as purchaser were inchoate and imperfect. By possession of the premises and delivery of the deed duly executed and acknowledged, his title was perfected. Under the provisions of the statute regulating sales on execution, the deed gave him a “ good and perfect estate in the premises.” 51 Ohio Laws, 57, §438. But the execution in’favor of Morgan was levied July 22, 1878, fully ten days before Shupe had taken possession or received a deed of the premises, and before he was vested with an interest therein, that could be levied on and sold to satisfy a judgment against him. Morgan’s levy was therefore invalid. The principle governing the case of Haynes v. Baker, 5 Ohio St., 253 is applicable to the case at bar. . Following and approving that case, we are of the opinion, that Kelsey, by virtue of the levy of the execution in his favor after Shupe had entered into possession and received a deed of the premises, acquired a valid lien thereon, and should be first paid out of the proceeds of tbe sale of the same.

The judgment of the district court must be affirmed.

Judgment accordingly.  