
    Eunice Buckingham’s Executors v. George Reeve and others.
    The leased lands and water power of the state, upon the canals and rivers, are not subject to judgment liens.
    This is a bill in chancery reserved in Muskingum county.
    The facts material to the decision are as follows:
    On the 10th day of February, 1842, George Reeve and George B. Reeve, two of the defendants named in the bill, being indebted to the complainants’ testatrix (then in full life), in the sum of $22,040, to secure the payment thereof mortgaged to her, by deed duly executed and acknowledged by themselves and their respective wives, certain lots and parcels of land situate in the county of Muskingum. The mortgage was duly recorded in the recorder’s office of that county, on the 11th day of February, 1842.
    At the time of the execution and recording of this mortgage, there were two judgments operating as liens upon the premises embraced therein; one of them being a judgment recovered at the March term, 1840, of the common pleas of Muskingum, by the Franklin Bank of Cincinnati, against George Reeve and George B. Reeve and others, for $3,155 damages and $16.58 costs of suit, and the other a judgment recovered at the June term, 1841, of the same court, by the Bank of Zanesville, against George Reeve and George B. Reeve and others, for $3,575.09, and $19.17 costs of suit.
    Before and at the time of the recovery of these judgments, George Reeve was in the possession and occupancy of two certain other parcels of land, with a grist mill and other buildings thereon, and certain water power, privileges and easements annexed thereto, situate in Muskingum county, and known as the “ Reeve mill property,” and continued in such possession and occupancy thereof up to and at the time of the execution and recording of the mortgage above mentioned, and also after wards, until the filing of the bill in this cause.
    These two parcels of land and water power, constituting the “ mill property,” were not included in the mortgage to the complainants’ testatrix.
    George Reeve acquired title to this “ mill property ” by virtue of a lease thereof made to him by the State of Ohio, by deed of indenture dated the 20th day of December, 1838, duly executed and acknowledged by both parties in the precise form prescribed for a conveyance in law, by the “ act to provide for the proof, execution, acknowledgment and recording of deeds and other instruments of writing.” This deed was afterwards duly recorded in the recorder’s office of Muskingum county.
    By the provisions of this lease, the premises were demised to George Reeve, for “ the term of thirty years, from and after the first day of January, 1889,” at the yearly rent of $1,200, payable semi-annually, on the first day of May and November in each year, with the right of “ renewal ” in the lessees.
    The clause of renewal is as follows: “ And it is further understood and agreed that, at the expiration of this agreement, the party of the second part shall be entitled to a renewal of the lease, for a like term of years, for such annual rent as may be offered by the highest responsible bidder, who shall also agree to purchase of said party of the second part, all permanent and valuable buildings necessarily erected by said party for the convenient use of the water power hereby leased, at such price as such buildings shall be adjudged to be worth by three judicious, disinterested freeholders, to be chosen as hereinbefore specified ; provided, such buildings shall be erected on land belonging to the state, or land which can be purchased by said bidder at a reasonable price, to be determined by said appraisers. And if no such bid shall be made on the terms aforesaid, at a higher rent than is herein specified, such party shall be entitled to such renewal on the terms of this lease.”
    On the 16th day of February, 1848, the Franklin Bank of Cincinnati sued out execution on its judgment, and on the 23d day of February, 1843, the Bank of Zanesville also sued out execution on its judgment ; which two writs of execution, returnable to the February term, 1843, were, on the 24th day of February, 1843, delivered to the sheriff of Muskingum, who, on the 25th of the same month, levied the two writs, at the same time, upon all the several lots and parcels of land included in the mortgage to the complainants’ testatrix, and also levied the same upon one other parcel not included in said mortgage, upon which also the two judgments, from the time of the rendition thereof, were liens; being the parcel mentioned in the bill as conveyed in fee to George Reeve and George B. Reeve by Henry Nash and wife, and called the Nash property, being the same premises included in the mortgage secondly mentioned in the bill dated the 19th day of January, 1830, and duly recorded, and which was a lien thereon prior to the two judgments. No further proceedings were had under these writs for want of time.
    On the 7th day of March, 1845, writs of venditioni exponas were issued on the two judgments respectively, for the sale of the premises levied on as above mentioned, returnable to the May term, 1845, under which the premises were appraised and advertised for sale, but the sale thereof afterward potsponed.
    On the 15th day of May, 1845, the complainants, as subsequent incumbrancers by mortgage in the manner above mentioned, obtained from the Franklin Bank of ■ Cincinnati an assignment of its judgment, and on the first day of July, 1845, as such subsequent incumbrancers, also obtained from the Bank of Zanesville an assignment of its judgment, and the transfers of such judgments were duly made to them as such subsequent incumbrancers, they advancing and paying to the respective banks, for the same, the full amount of the respective damages and costs originally recovered, and also all the interest accrued thereon, with all the accruing costs, up to the respective times of such transfer.
    On the 24th of March, 1848, the complainants, as such assignees of the judgments, caused writs of venditioni exponas, with an ao etiam clause therein, directing a further levy to be issued thereon respectively, returnable to the April term, 1848, and such executions were on that day delivered to the sheriff of Muskingum, who on the same day, in virtue thereof, levied on the “ mill property,” now in controversy, as permanent leasehold estate.
    Neither George Reeve nor George B. Reeve had the legal title to any other real estate upon which the judgments above mentioned, or either of them, operated as a lien at the time of the execution and recording of the mortgage to the complainants’ testatrix.
    The bill was filed on the 26 th day of April, 1848.
    On the 21st day of October, 1842, more than eight months after the execution and recording of the mortgage to the complainants’ testatrix, and while the two judgments were resting as liens binding upon the lands and permanent leasehold estate of George Reeve and George B. Reeve, the Merchants and Mechanics’ Bank of Wheeling, and the Clinton Bank of Columbus, obtained from George Reeve and George B. Reeve a mortgage, executed and acknowledged by George and George B. Reeve and their respective wives, in part security for the payment to these two banks of the sum of $ 63,211, upon all the premises included in the prior mortgage made to the complainants’ testatrix; and at the same time, also in part security for the same indebtment, another mortgage, executed and acknowledged in like manner, upon the “ Nash property” and the “ mill property.”
    These two mortgages were recorded on the 24th day of October, 1842, in the recorder’s office of Muskingum county.
    At the September term, 1848, a decree was rendered in the common pleas, marshaling the liens and declaring the rights and equities of the parties as to all the matters involved in the case, (excepting only as to the lien of the complainants upon the “ mill property,”) and directing a sale of all the other premises described in the bill, reserving for the future consideration and determination of the court, all questions as to the lien or claims of the complainants upon the “ mill property.”
    Under this decree all the premises, (except the “ mill property,”) were sold. At the February term, 1849, the sales were confirmed, and at the same time a decree entered applying the proceeds of such sales according to the rights of the parties as declared by the decree of the former terms.
    The whole proceeds of sale thus appropriated fall short of the payment of the amount due 'to the complainants upon the mortgage of the testatrix, and upon the two assigned judgments by about the sum of $7,000.
    The complainants insist that, as against the Merchants and Manufacturers’ Bank of Wheeling and. the Clinton Bank of Columbus, they have the preferable lien upon the “ mill property and to determine this question the case was reserved for decision in bank.
    C. C. Convers, for complainants.
    
      C. W Searl, for defendants.
   Spalding, J.

The only question we are called upon to consider, is that which arises from the claim of the complainants, that the judgments obtained by the Zanesvillg Bank, the Franklin Bank of Cincinnati, and assigned to complainants,swere a lien at law upon the leasehold estate • of George Reeve, the judgment debtor.

The act regulating judgments and executions provides, “ that the lands and tenements of the debtor shall be bound for the satisfaction of any judgment against such debtor, from the first day of the term at which judgment shall be rendered, in all cases where such land lies within the county where the judgment is entered.”

The lease in question, from the State of Ohio to George Reeve, is to carry with it the use and occupation of a sufficient water power to drive six run of mill stones, with land sufficient for the erection of mills, for the term of thirty years, at an annual rent of twelve hundred dollars, subject to very many conditions and restrictions.

The indenture is in the ordinary form used by the agents of the state in leasing water power upon its canals and river improvements.

The 2Sd section of the act to provide for 'the protection ot the canals of the State of Ohio, etc., has this provision:

“ Every lease, grant, or conveyance of water power shall contain a reservation and condition that the state, or its authorized agents may, at any time, resume the privilege or right tc use the water, or any portion thereof, whenever it may be deemed necessary for the purposes of navigation,” etc.

It will not be denied that a leasehold interest might be sold as a chattel at common law. 3 Black. Com. 417.

And prior to the act of January, 1821, any title by lease might have been sold in the same way in Ohio.

That act required that the interest of the lessee under a permanent lease, when sold on execution, should be appraised as real estate.

The act of March, 1839, provides “ that permanent leasehold estates, renewable forever, shall be subject to the same law of descent and distribution as estates in fee are or may be subject to; and sales thereof, upon execution, or by order or decree of the court, shall be governed by the same laws that may now or may hereafter govern such sales of estates in fee.”

If called upon to decide the question directly, I should hesitate to say that a judgment at law would have a lien upon any leasehold estate whatever. I think the law regulating permanent leaseholds, now in force. in Ohio, has respect only to the treatment after an order of sale or the levy of an execution.

We have no doubt, however, in regard to the case under consideration. The water-rents upon the canals and river improvements of the state, are not permanent leasehold estates. Although they may run thirty years, and may be renewed at the expiration of that term, if the lessee will pay as much as any other person therefor, they may not endure-for a day. They are made entirely contingent upon the exigencies -of the state, and wholly lack that character for permanency and stability which is requisite to elevate them to the • standard of “ lands and tenements,” which alone are subject to judgment liens at law.

So far as regards this question, the bill will stand dismissed-  