
    McGehe, Appellant, v. Handley et al.
    
    After a levy of execution and benefit of the valuation law claimed, and a return of no sale, because the property did not bring two-thirds of the valuation, an alias execution cannot issue until the expiration of twelve months.
    Two operative executions cannot be predicated on the same judgment at the same time.
    APPEAL from the circuit court of the county of Pontotoc.
    McGehe obtained a judgment on the 19th of November, 1839, in the circuit court of Pontotoc county,’ against Handley et al. for four hundred and thirty-seven dollars and sixty cents. A fieri facias issued on this judgment on the 18th of December, 1839, which was levied on the property of Handley, and a forthcoming bond taken, with W. W. Leland, surety, which was returned forfeited. On. the 12th of August, 1840, a fieri facias was issued on the forfeited bond against Handley and surety.
    This fieri facias was levied on certain lands of the defendant Handley, the benefit of the valuation law claimed, and the lands valued and returned not sold, two-thirds of the appraised value not having been bid.
    On the 18th of November, 1840, an alias fieri facias on the forfeited bond was issued. In this fieri facias the sheriff was required to make the money of the goods and chattels, lands and tenements of the defendants, “ other than those heretofore levied on and endorsed in the fieri facias.” The former return of the sheriff was endorsed on the fieri facias in full.
    A motion was made in the circuit court to quash this fieri facias, and sustained, and from which judgment of the court an appeal was taken by McGehe to this court.
    
      W. Y. Gholson, for appellants.
    The question presented for the decision of the court in this case arises under the act commonly known as the " valuation law.” Sess. Acts, 1840, page 25. By the third section of that act it is provided, that after the return of the sheriff that the property levied on would not sell for two-thirds of its appraised value, «no other writ of execution or other process for the sale of such unsold appraised property, shall issue until the expiration of twelve months from the time when such writ of execution shall have been returned.”
    The question to be decided in this case is, whether the last execution issued against other property of the defendants, and not against the unsold appraised property, be illegal. It seems very clear that the issuing of another execution against other property of the defendant is not prohibited by the statute. The prohibition in the statute is confined to a particular portion of the property of the defendant, the property appraised and unsold. The special protection given that property, would seem to leave the balance subject to the demand of the creditor. In fact the words of the statute almost seem by implication to authorize an execution against other property. They seem to make this case an exception to any general rule that might exist, prohibiting the issuance of a second execution while a levy remains undisposed of on a former.
    If no second execution can be issued until the expiration of the twelve months, irreparable injury might ensue in many cases to the plaintiff, without any corresponding benefit to the defendant. A levy is made on a parcel of land, it is valued and there is no sale, the execution is suspended for twelve months; in the mean time the property of the defendant is removed or disposed of, or swept off by younger executions, and the land at last sells for one half or one fourth of the amount of the judgment. If perchance the unfortunate creditor can find another parcel of land, he is compelled to go through same routine of levy, valuation, suspension for twelve months, before he can realize any other portion of his debt. On the ground of inconvenience and injustice, it is clear that the statute should be so construed as to allow a second execution.
    
      The object of the statute, it must be considered, was to prevent the sacrifice of the defendant’s property, not to shield any portion of it from the just claim of creditors, or to delay them of their honest dues. To suppose the contrary would be an insult to the legislature. And no honest debtor ought to desire to withhold from his creditors any portion of his property that could be sold at a fair price.
    The technical rule that a levy of an execution on sufficient property, is considered a satisfaction of the execution, has already been referred to. It will appear from an examination into the application of this rule, that it has frequently been made to yield to circumstances. Had the levy in this case been made on personal property, some enquiry into the principles on which that rule is founded, and into its proper application might have been necessary; but it is very clear that it does not apply to a levy on real estate.
    Where an execution is levied on lands, it is not a satisfaction of the execution: the same presumption of satisfaction does not arise as in case of a levy on personal property. See 14 Wendel’s R. 260, and 5 Yerger’s R. 227. A distinction is taken between, a levy on personal property, which is considered a satisfaction of the execution, and a levy on lands, which is held not to be a satisfaction. The reasons on which this distinction is founded are fully showmin the authorities cited.-
    The former execution in the present case having been levied on lands, there is no technical rule rendering the last execution illegal; it was clearly not prohibited, but rather authorized by the statute, and it cannot certainly be contended- that under the circumstances of this case, it was either an abuse of the - process of the court, or intended to harass the defendants. It is therefore confidently submitted that the order quashing the last execution issued in this case, should be reversed.
   Mr. Chief Justice Shaekev

delivered the opinion of the court.

The record in this case invokes a construction of an act of the legislature, entitled “ an act to provide for the valuation of property, and in relation to mortgages and deeds of trust,” passed February 21st, 1840. Tlie plaintiff sued out a fieri facias against the property of the defendants, which was levied on land. The defendants claimed to have the land valued according to the act, which was regularly done and returned to the sheriff, who offered the land for sale. It did not bring two-thirds of its value, and he made a proper return of all the facts. Before the expiration of twelve months the plaintiff sued out another execution, which on motion was quashed as being irregular, because it issued before the expiration of twelve months after the offer to sell under the first levy. The sheriff was directed by endorsement on the second execution, not to levy on the same property which had been levied on under the first execution. The question is, did the court err in quashing the execution ?

The object of the statute seems to have been to prevent the sacrifice of property by providing a mode by which it should bring a fair .value, and in case it should not sell for the required proportion of its value, that the defendant should have time allowed him to discharge the debt. The first and second sections provide that property levied on shall be valued, and the mode of doing it. The third section requires that on the day of sale, the sheriff shall offer it, and if'it does not bring two-thirds of the appraised value, he shall announce that there is no sale, and shall return the execution on the return day, together with the certificate of appraisement, certifying that it would not sell for two-thirds of its value. It further provides that no other writ of execution shall issue for the sale of such unsold property, until the expiration of twelve months from the time when such writ of execution shall have been returned. The fourth section provides that after the expiration of twelve months, the clerk shall issue a venditioni exponas directed to the sheriff, who is required to re-advertise the property according to law, and make an absolute sale. The fifth section provides that when property does not bring two-thirds of its value, if real estate, it shall remain in possession of the defendant, and if it be personal property the defendant may retain possession on giving bond with security, conditioned for the safe-keeping and prompt delivery of the property to the sheriff on the first day of the term but one next succeeding that to which the execution was returnable. The sheriff is required to return the bond, and if the condition be broken it has the force and effect of a judgment, without the privilege of further procrastination in its collection.

It is true that a second execution is not in so many words prohibited as against other property than that first levied on, and yet this may be done as effectually by implication or necessary consequence from the provisions of the act, as by express prohibition. The application of a few legal principles will serve to show that a second execution is virtually prohibited. 1. Two operative executions cannot be predicated on the same judgment at the same time; whilst one is in the progress of being made effectual, a second cannot issue. 2. A levy on personal property changes the property and is a satisfaction of the execution to the extent of the value; and a levy on sufficient real estate is so far an execution of the judgment as to postpone the right to a second writ. Gilbert on Executions, 24. To these we may add that excessive levies are not tolerated in law. The valuation and an unsuccessful offer to sell do not raise or destroy the first levy, but it is considered as still existing, and the property in the hands of the sheriff; hence the legislature merely required that' a venditioni exponas should issue after the expiration of twelve months, requiring the sheriff to sell that- which he had previously taken. Having enough in his hands, it would be unjust and oppressive to authorize him to take more, and a levy is presumed to be a sufficient one. A first sufficient levy must be disposed of before a second can be made. In this case the first levy was not disposed of; it was merely suspended by operation of law, which suspension did not in any degree change the legal effect of the levy on the rights of the parties. We have seen that the effect is a change of the property and satisfaction of the execution. By the common law the judgment was not a lien upon the defendant after levy. Double satisfaction cannot be required of the same judgment, and this would be the inevitable consequence, if a second execution may rightfully issue. Yea! more than this; treble and even quadruple satisfaction might be exacted, for if property taken under the second writ should not sell for two-thirds of its value, a third and fourth might issue with equal propriety. In this way excessive levies would be the sure consequence. Why, it may be asked, should the legislature have provided for keeping the levy in force for twelve months, and at the expiration of that time required a peremptory and speedy sale, if it was not intended that no other execution should issue. Such a provision is incompatible with the idea that the plaintiff might still go on and levy on other property. Hence we think it plain that the legislature intended a suspension of the proceedings for twelve months; but independent of such intention, as the levy still exists, the property being in the hands of the sheriff, which operates as a satisfaction of the execution, the legal effect is that a second execution cannot regularly issue. We therefore think the court was justified in quashing the second fieri facias.

Judgment affirmed.  