
    Lessee of Luke Walpole v. Peter Ink.
    When a judgment creditor levies on only a part of the debtor’s land, he loses his preference as to other lands, first levied on by other execution creditors. A writ of certiorari is adopted in Ohio to correct such proceedings in inferior courts, as are not in conformity with the common law.
    'The reversal by the Supreme Court, of an order setting aside an order confirming a sheriff’s sale, necessarily affects those claiming against the sale.
    A judgment creditor who is himself the purchaser at sheriff’s sale, is affected by error in the judgment under which he acquires title.
    Ejectment. From Knox. Both parties derive title under sheriff’s ■deeds. The land was formerly owned by Talmadge. Walpole recovered a judgment in the Supreme Court of Knox, in September, 1826, for $8,445 28, against Talmadge. Execution' issued and a levy was made, and no entire year has since elapsed, without execution upon the judgment being in the hands of the sheriff of Knox or Coshocton ■counties. No levy was made on the land in controversy, upon such ■executions. At September term, 1831, the Supreme Court in Knox, pronounced a decree in Walpole’s favor, setting aside a conveyance by Talmadge to one Beers, of the land dow in controversy, as a conveyance in fraud of Walpole’s judgment. On the 27th of December, 1831, Walpole took out a new execution, and on the 28th of January, 1832, levied upon the land, which was sold by the sheriff; Walpole became the purchaser, bad the salé confirmed, and received the sheriff’s ■deed. On the 22d of October, 1831, Talmadge confessed two judgments, one in favor of one Dalrymple, and the other in favor of one •Struble. Executions were issued *upon these judgments the 29th of •October, 1831, levied upon the land in controversy, 17th November, 1831, which was afterwards sold by the sheriff, sale confirmed, and •conveyed to J. W. Warden, who conveyed to Ink. In 1832, the court of Common Pleas se't aside this sale ; but that order was reversed by the Supremo Court, in September, 1833. Wright, 447. A verdict was taken pro forma, subject to the opinion of the court on the fact? stated.
    *0. B. Goddard, Convers, and Mitchell, for the plaintiffs,
    in sisted that the proceedings under the writ of certiorari were invalids so far as used as a writ of'error ; that it was improperly sued out by one not a party to the proceeding, and to those points, cited a number of authorities. They also claimed that Walpole never lost his lien on. the land ; Talmadge’s fraudulent deed, which merely embarrassed it, was vacated by the Supreme Court, and then the lien of the judgment, attached in full force, and so continued until his purchase ; which cau not be defeated by the judgments confessed between the date of that, decree and the levy. The case of Hubbell v. Broadwell, 8 Ohio, 120, does not conflict with this assumption. That was a case in equity, and; this is at law.
    H. B. Curtis, and Sayre, for the-defendant.
    -Walpole’s judgment, did not continue a lien on the land. It was lost by delay. The-recovery was in 1826, the levy in 1832. In the mean time proceedings were had to set aside the fraudulent deed to Beers, which succeeded iu 1831. It is said Walpole’s judgment never properly attached as a lien, until the fraudulent deed was declared void. This seeks to place the land in the condition of that purchased after judgment. The decree gave Talmadge no new estate, it merely removed a clause from-, the title. A judgment lien could not be affected by a fraudulent deed. Wright, 700. But if held newly acquired, then the judgment was no-lien until levy, which was after the other judgments under which the-defendant claims, were confessed, and attached as a lien. 1 Ohio, 313; 4 Ohio, 92 ; 2 Ohio, 70, 396. The reversal of the order confirming, the sale to Warden, does not aid the title of the plaintiff.
   By the Court,

Grisike, Judge.

The question made, whether the. Supreme Court had jurisdiction of the writ of certiorari, it is hardly necessary to examine. No principle is better established than this, that where an inferior court proceeds according to the course of the • common law, its proceedings are revised by writ of error;' and when it does not proceed in that mauner, its orders are only examinable by certiorari. In England, the remedy by certiorari is two-fold ; to remove'a case for trial into the court above, or merely to enquire into-the correctness of its orders. We have dropped the first mode, and. .adopted the last. There was no judgment upon which a writ of error would lie, but only an order, and for that reason the writ of certiorari was,the proper remedy. The case is also free from any * embarrassment in consequence of the suit in chancery; for, admitting that the commencement of the lien of Walpole’s judgment should be referred to the period when a decree was pronounced, the question still remains, has he a preference as regards other judgment creditors ? The lien as between the debtor,- and a purchaser from him, may have been preserved, while at the same time it may have been lost as between Walpole and other execution creditors.

It appears that this judgment was rendered in September, 1826, and that no entire year has since elapsed, when executions were not held -either by the sheriff of Knox or of Coshocton counties. These executions have been levied on other property, but there was no levy on this land, until after the levy in favor of Dalrymple and Struble. Under these circumstances, although the lien of Walpole’s judgment may still have existed, his preference as an execution creditor was gone. Wright, 447. But Walpole purchased during the existence of the order of the court of Common Pleas, which determined the priority of his right. As that order was afterwards reversed, he must -necessarily be affected by the consequences. It is not the case of a purchase under a judgment. As to that, the rule in England is sometimes thus stated : that where a judgment is reversed, it does not vacate the sale of personal property, but where the execution is levied •on land, the title is vacated. The reason why the rule is thus stated, is that where land is seized, it is never sold, but is extended, and delivered to the execution creditor. And if this were a sale under a judgment, and that judgment had been reversed, perhaps some analogy might be drawn between the two cases, if a purchase by a judgment creditor under execution in Ohio, is the same as an extent in England. But it is unnecessary to give any opinion on that point; as it was an interlocutory order, and not the judgment which was reversed.

Judgment for defendant.  