
    Scharff Bros. & Co. et al. v. E. Zimmerman, Trustee, etc.
    Jtjdqment-Lten. Priority. How preserved. Notice under seet. 1787 of Gode of 1880.
    
    If the holder of a judgment with a prior lien acquired by enrollment as provided insect. 1736 and 1737 of the Code of 1880, upon being notified by a judgment-creditor having a subsequently acquired judgment-lien, to proceed in the.collection of his judgment, causes an execution to be issued and placed in the hands of the sheriff, that is all the law requires of him in the preservation of his lien, and he is not required to point out to the sheriff the property subject to the execution.
    Appeal from the Circuit Court of Warren County.
    Hon. WarreN CowaN, Judge.
    Schax-ff Bros. & Co. had a judgment against A. B. Reading which was enrolled on the 27th day of April, 1876. Marga-rette Tarleton had a judgment against Reading which was enrolled on the 27th day of June, 1876. E. Zimmerman, trustee, etc., had a judgment against Reading which was enrolled on the 10th day of June, 1877. Shortly after the rendition of the above judgments executions were issued on. all of them and returned nulla bona. Subsequently E. Zimmerman, trustee, etc., discovering property of the defendant subject to execution, gave the ten days’ notice required by sect. 1737 of the Code of 1880 to Scharff Bros. & Co. and Margarette Tarleton, calling upon them to levy their executions. Before the expiration of the ten days Scharff and Tarleton sued out executions upon their judgments, and placed them in the hands of the sheriff. After the ten days had expired E. Zimmerman, trustee, etc., sued out an execution upon his judgment, and directed the sheriff to levy it upon certain designated property of the defendant, which was accordingly levied upon and sold, realizing $1,436. The other two executions were levied after the levy of the Zimmerman execution. The sheriff returned the money with all three of the executions into court, and requested the court to make the proper application of the money. The court applied the money to the Zimmerman judgment, and the other two judgment-creditors appealed to this court.
    
      M. Marshall, for the appellants.
    “ Where the judgments are equal he who first sues out his execution turns the scale in his favor, and gains a priority by his vigilance.” Burney v. Boyett, lHow. 42. If neither judgment was a lien it would then be “ a race of. diligence between the parties.” Boüusy. JEdrington, 30 Miss. 582. The prior judgment-lien “can only be defeated or postponed by some act of the creditor which is deemed fraudulent in law as against other creditors.” Smith v. Everly, 4 How. 185. “ The lien of the elder judgment could be displaced only by the negligence of the .plaintiffs.” Dibble v. JSTorton, 44 Miss. 165. “ The theory of our statutes has, under all the several changes therein, been to give the preference to the oldest judgment and lien, unless the oldest creditor by some act of omission or commission loses his priority ; he must himself be the cause of the postponement, it is not affected by the negligence of the sheriff. If the elder creditor has regularly issued the process he will not be postponed to a younger creditor who has shown property to the sheriff.” Dafney v. Staelchouse, 49 Miss. 515, 516 ; Bucas v. Stewart, 3 Smed. & M. 231; Bobinson v. Green, 4 How. 223.
    
      
      Shelton & Orutcher, for the appellee.
    We submit that uuder our Code there are two rules in relation to the priority of judgments : —
    1. Judgments take precedence in the order of their enrollment.
    2. But if a junior creditor, who by the exercise of diligence, discovers property of the debtor and gives notice to a senior creditor, and the latter fails within ten days to cause his execution to be levied on the property,— whether that failure arise from neglect, or because the senior creditor has failed to exercise similar diligence in finding it as the junior creditor has,— then, upon the pointing out of the property by the junior creditor to the sheriff, and the levy of his execution thereon, the money will be applied in satisfaction of the junior judgment. The following cases are cited: B. B. Go. v. Trotter, 36 Miss. 417; Dibble v. Morton, Admr., 44 Miss. 162; Virdon v. Bobinson, 59 Miss. 33 ; Dabney v. Stach-house, 49 Miss. 513 ; Oarrie v. Lamkin, 51 Miss. 91.
   Cooper, J.,

delivered the opinion of the court.

The priority of liens provided in favor of enrolled judgments according to their seniority by sect. 1737 of the Code of 1880 is not lost to the senior creditor by his failure to point out to the sheriff property of the defendant which is subject to levy and sale. If, on being notified by a junior creditor to ‘proceed in the collection of his judgment, he sues out execution and places it in the hands of the proper officer, he has done all that the law requires him to do for the preservation of his priority. The fact that the junior creditor, by the exercise of unusual diligence, acquires information of the existence of property of the defendant subject to execution and points it out to the officer, does not subordinate to the lieu of his judgment those of others which, are senior, and the owners of which are not in default. Superior diligence on the part of the junior creditor will not alone give him priority; there must also be sloth, negligence, or fraud on the part of the creditor in the senior judgment. Robinson v. Green, 4 How. 223 ; Lucas v. Stewart, 3 Smed. & M. 231; Mobile and Ohio R. R. v. Trotter, 35 Miss. 416 ; Dabney v. Stackhouse, 49 Miss. 513.

The judgment is reversed and cause remanded.  