
    Susan H. Calmes vs. John R. Ford.
    Where an execution on a younger judgment was levied in December, 1840, on personal property which was advertised for sale on the 4th day of January, 1841, under that levy; and on the day of sale an execution on an older judgment was levied on the property under sale by virtue of the first levy ; the judgment first levied, and under which the sale takes place, though junior in date, will be entitled to the proceeds of the sale; but the purchaser of the property will hold it subject to the lien of the older judgment.
    In error from the Adams circuit court; Hon. C. C. Cage, judge.
    Susan Calmes recovered a judgment against Horace Gridley in the circuit court for $738 90, on the 1st day of May, 1837. An execution issued on this judgment on the 19th day of December, 1840; and on that day was levied on a negro woman, and five casks of cheese, and three half-barrels of whisky, as the property of Gridley; which were advertised by the sheriff for sale on the 4th day of January, A. D. 1841. On that day, an execution at the suit of John R. Ford against Horace Gridley came to the hands of the same sheriff, on a judgment rendered on the 20th day of February, 1837; on this last judgment the sheriff made the following return: “ Received this execution \ before 12 o’clock, Monday, A. M. January 4, 1841; levied this execution 4th January, 1841, on the following property of defendant H. Gridley, to wit: one negro slave named Leander, three half-casks whisky, and live casks cheese. S. B. Newman, sheriff.” “ Sold the above property this day, regularly advertised under an execution of Susan H. Calmes against H. Gridley, for the sum of $312 67. Natchez, January 4, 1841. S. B. Newman, sheriff.”
    At the ensuing term of the court, Ford moved to have the money thus made appropriated to his judgment; which was granted by the court; upon which Calmes excepted and prosecuted her writ of error.
    
      
      Montgomery and Boyd, for plaintff in error.
    From the facts above stated we conceive it is clear, that Mrs. Calmes was entitled to the money made under her execution, and the court erred in overruling the motion.
    The facts briefly are, that Ford had the oldest judgment, and an execution thereon had been returned nulla Iona at May term, 1840, after which no execution appears to have been made to cause satisfaction, but a large payment was voluntarily made. Mrs. Calmes, who held the younger judgment, by diligence and attention, discovered property of the defendant subject to execution, and had a levy made on the 19lh of December, 1840. The sale came on the 4th January, 1841, and Ford, no doubt, having accidentally discovered that some money was likely to be made out of. Gridley, conceiving it a fair opportunity to profit by the diligence and perseverance of others, caused his execution to issue and be handed to the sheriff after the hours of sale, and while the sale was progressing; arid had a levy made on the same property. But the sheriff did not stop the sale, and take time to advertise the sale under Ford’s execution. He proceeded to sell under Mrs. Calmes’s execution, and noted his proceeding under both.
    We will not contest that if .both executions had been levied, and the sale made under both, the oldest judgment would be entitled to be first satisfied ; but as there was no sale under the oldest judgmerit, its lien was not impaired, and, therefore, it was not entitled to be satisfied out of that fund. The decisions of this court on this subject are so full and direct to the point, that we do not conceive it necessary to do more than cite them. Commercial Bank of Manchester v. Coroner of Yazoo County, 6 How. R. 583. This case is precisely in point, unless a distinction can be shown between the liability of personal and real estate to the claims of judgment creditors. Commercial and Railroad Bank v. Helderbran, 6 How. 538; Andrews v. Wilkes, Ibid. 562; Bibb, use of v. Jones, 7 Ibid. 400.
    
      W. G. Thompson, for defendant in error.
    There could be no question,' it is presumed, as to the correctness of the judgment of the court below, if advertisement had been made for sale of the property under both executions. What is it that entitles a party to the proceeds of property levied upon by virtue of his execution ? Is he entitled by virtue of advertisement made or by virtue of a levy and sale? Certainly by virtue of a levy and sale. Whatever irregularities and informalities there be in a sheriff’s proceedings with an execution, provided there be an actual levy and sale under it, no one can object to the purchaser’s title nor to the plaintiff’s receiving the proceeds of the sale, unless it be the defendant in execution. The plaintiff in error cannot object to the money being appropriated to the execution of the defendant in error, on the ground that the property was not advertised to be sold under the execution of the latter. It is only the defendant in execution, if any one, who can object on that ground. The property having been, in point of fact, levied upon and sold under both executions, there remains, as between the parties to the record, the single question of priority of lien. Minor v. The President and Selectmen of Natchez, 4 S. & M. 602.
   Mr. Justice Thacher

delivered the opinion of the court.

This was a motion in the circuit court of Adams county to apply money to the satisfaction of an execution of the plaintiff in error. The plaintiff in error recovered a judgment against Gridley on the 1st day of May, 1837, and the defendant in error on the 20th day of February, 1837, against the same defendant. Thé execution of the plaintiff in error was issued on the 19th day of December, 1840, and was served on property the same day. On the 4th day of January, 1841, which was the day of sale under this execution, and at a quarter of an hour before twelve o’clock, A. M. of said day, the sheriff received an execution upon the judgment of the defendant in error which had been issued that day, and levied it upon the property then under sale. The court directed the appropriation of the money to the execution of the defendant in error.

In this case, the court below erred, as has been previously held by this court in the case of The Commercial and Railroad Bank v. Helderbran, 6 How. 538. There was no sale of the property under the elder judgment and execution, and the sale under the junior judgment and execution does not divest the lien of the elder. The purchaser is supposed in law to take the property with its incumbrances, and there is no difference in this respect between real and personal property.

Judgment reversed, and the money directed to be appropriated to the execution of the plaintiff in error.  