
    The Coal Company v. The First National Bank.
    
      Sale of property on writ of execution — Statutory provisions— Validity of levy as against subsequent creditors — Foreign execution — Extent of judgment lien — Constructive notice of lien.
    
    1. Statutory provisions prescribing the order to be observed by an officer in subjecting the debtor’s property to sale on a writ of execution, are directory in their nature, and for the benefit of the debtor, who may waive strict compliance therewith; and such waiver will be presumed unless he assert his right by a direct proceeding to set aside the action of the officer.
    2. As against subsequent purchasers and creditors, it is not essential to the validity of a levy of an execution on land, that the debtor be without chattel property on which to levy ; nor will the levy be rendered invalid, or ineffectual to create a lien, by the omission pf the officer to indorse on the writ, no goods.
    3. A valid levy of a foreign execution on land of the debtor has the effect of extending the lien of the judgment to the land seized ; and the lien is not limited in duration to the time the writ has to run, but may be preserved and continued in force as long as the judgment remains unsatisfied and is not allowed to become dormant, in like manner that the lien of the judgment on land in the county where rendered, may be.
    4. Return of the writ by direction of the creditor, without a sale of the property, is not a discharge of the lien.
    5. The entries on the foreign execution docket, which the sheriff is required to make, of the date and amount-of the judgment, with a copy of the levy, and description of the land, are constructive notice of the lien, binding upon subsequent purchasers and creditors, while the lien remains in force.
    (Decided November 17, 1896.)
    
      Error to the Circuit Court of Jefferson county.
    The case is stated in the opinion.
    Swa/yne, Ilayes <& Tyler and John M. Cook, for plaintiff in error.
    In the consideration of the matters here involved, three important questions of law present themselves for the determination of this court:
    
      First — Was the real estate in the petition described legally seized in execution on the 21st day of June, 1888?
    
      Second — If so, was said real estate, from said date, bound for the satisfaction of the judgment of the defendant in error until said judgment became dormant, or only during the life of the writ of execution?
    
      Thvrd — Was it the intent and purpose of the legislature, by the' enactment of section 5372 of the Revised Statutes, authorizing writs of execution to be issued out of one court to the sheriffs of all the counties of the state, to thereby create judgment liens, or to enable judgment creditors to enforce the collection of their debts ?
    
      Fi/rst — It is. not claimed by the defendant in error that the return of the sheriff, indorsed upon the writ, complies with the requirements of statute, section 5382, and it must be conceded that no sale of the real estate in question could have been made thereunder which would have been confirmed by the court. Koehler v. Ball, 2 Kansas, 160.
    The statute is not only mandatory in its terms, but the power, thereby vested in the sheriff, to levy the writ upon the real estate' of the debtor, depends, as a condition precedent to the exercise of that power, upon the existence, as a matter of fact, of a search and a failure to find goods and chattels sufficient to satisfy the same. There is no evidence, either in the return of the sheriff or in the record of this case, that said condition precedent to the exercise of that power had any existence in fact, and none will be presumed in law.
    It is an elementary principle of law, long since established by this court, that the record of an instrument, required by law to be recorded and which is not duly executed, is not constructive notice to bona fide purchasers. White v. Denman, 1 O. S., 111.
    If it be the opinion of this court that James M. Ham, and consequently his grantee, this plaintiff in error, were bound by constructive notice of the entries contained in this foreign execution docket, to what extent are their rights, as subsequent bona fide purchasers, affected thereby?
    Before purchasing the real estate, therein described, and paying therefor, they found that this writ of execution had been, by the order of the plaintiff’s attorney, returned without further proceedings. Were they, or either of them, by reason of this entry, bound to assume that the judgment had not been satisfied? Did they not have the right to assume that, because said writ was returned unexecuted by virtue of and in accordance with an order of the attorney of the judgment creditor, the judgment had been satisfied? Will it be claimed that, because the execution creditor saw fit to stay the hand of the court and to waive his right, under the writ, to subject the real estate of the judgment debtor to the payment of his debt, prospective purchasers were thereby put upon inquiry, and that it became their duty to investigate the records of a foreign court for the purpose of ascertaining whether the judgment had been fully satisfied of not. We believe that no such duty devolved upon either James M. Ham or this plaintiff in error and we assert that, in the furtherance of justice, no such burden should be imposed.
    
      Second — If this court should hold that the real property of the. judgment debtor, situated in the county of Jefferson, was, on the 21st day of June, 1888, legally seized in execution and that the plaintiff in error was bound by constructive notice of that fact, then we ask, what was the nature of the rights thereby acquired by the judgment creditor ?
    Did the judgment, by virtue of the seizure, become a lien upon that real property ?
    Was that land bound for the satisfaction of the judgment so long as it remained alive?
    Was not that land bound only so long as the seizure continued under the writ and did not the right, thereby vested in the execution creditor, expire the very moment seizure was abandoned, ■ and the land released by the sheriff in accordance with the order of the former ? Sturgeon v. Hull, 8 C. C., 269; Bank v. Coal Company, 11 C. C., 412.
    By section 5375 of the statute the property of a debtor, bound for the satisfaction of a judgment, is classified as follows:
    
      First — Lands situate within the county where the judgment is entered;
    
      Second — All other lands and goods and chattels.
    The fact, that the statute has placed goods and chattels in the same class with lands, not situate in the county where the judgment was rendered, is significant. Neither can be bound for the satisfaction of a judgment until there has been a seizure in execution by the officer to whom the writ is directed.
    The officer to whom the writ is delivered, is required to take the goods and chattels levied upon into his possession, but this is not true as to real estate. It has been long since decided by this court that an indorsement by the officer upon the writ, to the effect that for want of goods and chattels whereon to levy the same, it was by him levied upon the real estate, therein described, is in law, equivalent to a seizure thereof, but the question which still remains for determination is, how long’ does that property remain bound for the satisfaction of the judgment?
    It is elementary law that goods and chattels, which' have been seized in execution and .released from the operation of the writ, cannot, when they have become the property of an innocent purchaser, be subjected to the satisfaction of the judgment of the execution creditor.
    If the lien, which attaches to goods and chattels by seizure in execution, is determined by the return of the writ without sale, in accordance with the order of the execution creditor, why does it not necessarily follow that the lien upon lands, not situate in the county wherein the judgment was recovered and which is created by the seizure in execution of such lands, is also determined by a return of the writ, without further proceeding’s, and in accordance with the instructions given the officer, by the judgment creditor. .
    This question -is, by the learned judge of the court below, answered in the negative and for the reason that the lien, acquired by the seizure in execution of goods and chattels, is different from the lien acquired by the seizure of lands, not situate in the county wherein the judgment was rendered; that the former is an execution lien, and the latter a judgment lien, and that, therefore, the law applicable to the one has little or no application to the other.
    To the soundness of this reasoning we cannot accede. The premises, from which his conclusion is reached and upon which the judgment of the court below was based, are not,' in our opinion, correct, and, if not, the judgment must necessarily be reversed.
    
      Third — Has the legislature of this state, by statute, provided that a judgment rendered in one county shall, under any circumstances, become a lien upon real estate situate in another county ?
    This question we must answer in the negative and we maintain, as was held by the court in the case of Sturgeon v. Hull, 8 C. C., 269, that the purpose of sections 5372 and 5375 of the Revised Statutes is ‘ to enable a judgment creditor to enforce the satisfaction of his judgment by a seizure and sale of the real estate of his debtor, which is situate in a county other than the one wherein it was recovered, and not, by such-seizure, to constitute his judgment a lien upon said real estate. In other words, we maintain, as was held by that court, that he could not use the execution laws to create a judgment lien.
    The court below, in refusing to follow and to concur in the decision just referred to, held that by the seizure of goods and chattels, the execution became a lien thereon and that by the seizure of lands situate in a county other than the one in which the judgment was rendered, the judgment became a lien thereon; that these are two separate and distinct things ; that the law applicable to the one has little or no application to the other, and that the one relates almost exclusively to personal property and the other to real property. Bank v. Coal Co., 11 C. C. Rep., 418; Revised Statutes, section 5374.
    Upon what ground can such a construction of the statute 5375 as made by the court, be logically based ?
    The purpose of sections 5372 and 5375 of the Revised Statutes is to enable a judgment creditor to satisfy his judgment in one or both of two ways.
    
      First — By causing a writ of execution to issue out of the court in which the judgment was recovered, directed to the sheriff of any county in the state and by his seizure and sale, thereunder, of the goods and chattels of the debtor.
    
      Second — If no goods or chattels can be found, whereon to levy the writ, or if those found are insufficient, in value, to satisfy the same, then by a seizure and sale of the lands of the debtor.
    In both instances, the purpose and the manner of accomplishing that purpose are the same. In both instances, the character of the lien acquired by the seizure of goods and chattels or of lands, not situated within the county wherein the judgment was rendered, is the same. The statute makes no distinction and its language warrants none. Section 206 of Freeman on Executions.
    There is no doubt that, ás a matter of law, a judgment never does and never can become a lien upon personal property, or that goods and chattels, when seized under the writ, become subject to the lien of the execution. Freeman on Executions, second edition, chapter 13, section 201.
    Among the states the author includes our own, and for his authority in so doing, refers to section 421 of the Ohio Code, now section 5375 of the Revised Statutes.
    This undoubtedly being- the law, conceded to be so by the learned judge of the court below, what statutory authority is there for attributing to a seizure of real estate, under a writ of execution, an effect any different from, that which follows the seizure of goods and chattels, under the same writ? And, as it must necessarily be admitted that there is no such statutory authority, what is there in the nature of the property which prevents the principles of law applicable to the one from being applicable to the other ?
    There is no doubt that goods and chattels, seized in execution for the satisfaction of a jiidgment, are bound by the lien, thereby created, only so long as the writ remains in force. Freeman on Executions, section 202.
    The case of Moore v. Rittenhouse, 15 Ohio State, 310, is cited by the court below, as substantially decisive of the case at bar and is, therefore entitled to careful consideration.
    The court, on page 318 of the report, says as follows:
    “Now, as Moore’s levy was made subject to the lien created by the prior levy of Emmett, it is clear that had the property been sold upon execution, Emmett’s judgment must have been first satisfied.”
    This statement of the law, applicable to the case, is inconsistent with the assumption, of the court below, that either or both of the judgments were liens upon the land.
    If Emmett’s judgment became a lien upon the land, by virtue of a seizure in execution, and the land has been sold, under the writ issued upon Moore’s judgment, the money arising therefrom would not have been applied in payment of Emmett’s judgment, but the purchaser would take the land subject thereto.
    The language employed by the court in its decision, and its judgment, upon the facts presented for adjudication, show that the. liens created by the levies upon the real estate of the debtor were regarded as execution and not judgment liens.
    The particular question here involved is, for the first time presented for the determination of this court, and the authorities upon which the judgment of the court below was based, are not, in our opinion, sufficient to justify the position by it taken.
    "We maintain that the purpose of the statute, in authorizing a writ of execution to be issued, is to enable a creditor to subject the property of his debtor to the payment of his judgment, and not to forever bind the property by constituting the judgment a lien thereon. Freeman on Executions, second edition, section 206.
    A sale under awritof execution,maynotbebeneficial to a judgment creditor because made subject to all prior liens, but in such event, should the creditor not desire to avail himself of the remedy granted by the statute, because inadequate, he may and should apply to a court of equity which would grant him relief and, by proper proceedings, all liens could be marshaled, their priorities determined, the lands sold and the proceeds arising therefrom distributed in accordance with the order of the court. Thus no injustice would be done and the rights of all would be protected.
    James M. Ham paid full value for the stone coal, underlying the real estate of the judgment debtor, and his grantee, this plaintiff in error, is entitled to the ownership thereof, free and clear from any and every claim or demand now asserted by this defendant in error which, through its own laches or negligence, has lost the right to satisfy its judgment by the sale of real estate which is now the property of one other than its debtor.
    Certainly the equities of this case, and as we assert, the law are with this plaintiff in error and, having come into a court of equity, the defendant in error should be compelled to do equity and, therefore, the judgment of the court below should be reversed.
    
      Ernest L. Finley, for defendants in error.
    
      First — -Was said real estate legally seized in execution?
    The allegation of the petition as to the recovery of the judgment, the issuance of execution and the levy of the same by the sheriff on the premises described are not mentioned in the defendant’s answer in the common pleas court, but are referred to in its answer filed in the circuit court, which reads as follows:
    
      “Seventh — This answering defendant says that neither it nor the said James M. Ham had, on or prior to the 28th day of December, 1888, any notice or knowledge of the judgment or of the execution issued thereon out of the court of common pleas of Franklin county, Ohio, or of the proceedings of the sheriff thereunder, as in the petition alleged, and that it has not now any knowledge thereof. ”
    That is certainly not a denial of the allegation of the petition as to either of the facts referred to Bombarger et al., v. Turner, Adm'r., 13 Ohio St.,270.
    It is in effect rather an admission. A general denial cannot apply to averments, included in admission. Stephen v. Incorporated Village of Leesburgh, 33 Ohio St., 475.
    It is not the indorsement of “no goods,’’butthe fact that no goods and chattels can be found, which justifies a levy on lands and tenements. Martin v. Cook, et al., Ex'rs, v. William Dinsmore, et al., 5 C. C., 391.
    It is true there is no finding’ as a conclusion of fact by the court below whether the defendant, George E. Medill, had or had not “goods and chattels whereon to levy,” but even if the defendant below had been entitled to a finding under the state of the pleadings and the court’s findingof its conclusions of fact were not responsive in that. particular-, no exceptions were taken on that ground, and this court will not go beyond the assignment of errors upon the record, unless it be to consider errors relating to jurisdiction. Levi v. Daniels, 22 Ohio St., 38.
    The presumption is in favor of the regularity of the officer’s acts, and that a levy on the land was made on account of a want of personal property. Jones v. Austin, 10 Ired., 20.
    The provision of the statute which directs the officer to whom an execution is delivered to proceecl to levy the same upon the goods and chattels of the debtor, but if no goods and chattels can be found, * * * forthwith levy the same upon the lands and tenements of the debtor which are liable to satisfy the judgment, Sec. 5383, Rev. Stat., has its origin in the assumption of law, that the interest of the debtor requires that he be permitted to retain his realty in preference to his personal estate. So that a judgment debtor may waive his right to have his personal property taken first. Freeman on Executions, section 279. Smith v. Randall, 65 Am. Dec., 475. Ford v. Skinner et al., 4 Ohio, 378.
    Proceedings under execution, though tainted with irregularities, are usually valid between the parties until vacated by some appropriate. motion or action. If parties do not see proper to make such motion or institute such action, they waive the irregularity and impart conclusive validity to the proceedings. What the parties, by their non-action chose to confirm, strangers cannot impugn, Hence the general rule, that strangers to a suit will not be allowed to impeach or deny that which the parties treat as valid and indisputable. Freeman on Executions, 365. Phelps v. Parks, 4 Vt., 488.
    Errors and irregularities must be corrected by a direct proceeding and not by way of a collateral attack. Freeman on Executions, section 390. Frakes v. Brown, 2 Blackford, 295. Dunham v. Holman, 71 Am. Dec., 198.
    The provision of section 5383, Revised Statutes, with reference to first levying on goods and chattels, is directory.
    Laws which prescribe the order in which different species of property of a defendant in an execution ' shall be sold, are directory and not mandatory, and do not invalidate proceedings in violation of them, unless the proceedings are vitiated by fraud. Hayden v. Dunlap, 3 Bibb., 219. Farris, etc., v. Banton, 6 J. J. M., 235. West v. Cooper, 19 Ired., 1. M. S. v. Denham, 1 Hemp., 320. Note. Buler v. Bullet, 3 J. J. M., 320.
    The entry of the sheriff on his foreign docket fulfills every requirement of section 1212, Revised Statutes, and hence was notice to subsequent purchasers of the matters contained therein. Cook et al., Ex'rs, v. Dinsmore et al.,.5 C. C., 392.
    
      It is difficult to see how such an entry could he either construed or distorted to mean that the judgment had been satisfied — and especially in view of the universal practice which has so long obtained in this state in such cases and the well established rule, “that nothing short of a sale oí land under a levy, can be held a satisfaction.” Reynolds et al. v. Ex’rs of Rogers, deceased, 5 Ohio, 165.
    A cautious and prudent man could not have been misled thereby.
    
      Second — The judgment, by virtue of the seizure in execution, became a lien upon the real estate and the land was bound for the satisfaction of the judgment so long as it remained alive. Section 5375,' Revised Statutes.
    If we were to omit from the section the words “as well as goods and chattels of the debtor,” there could hardly be two opinions as to the correct intrepretation of the section, which might be read as follows: “Such lands and tenements, within the county where the judgment is entered, shall be bound for the satisfaction thereof from the first day of the term, and all other lands shall be bound for the satisfaction thereof from the time they are seized in execution.”
    The judgment is the lien in each instauce — the only difference being as to the time the liens attach.
    A very good and familiar rule of construction is “If laws of a doubtful meaning be connected with or relate to other laws which throw any light on their purport, the interpretation thus derived is the one that should be adopted.” Section 5380, ' Revised Statutes. '
    , The operation of section 5380 must be limited to the county where the judgment is rendered if the lien obtained on land in other counties is merely an execution lien and the provision for renewal every term of five years would be meaningless, and nugatory as to the latter. Davidson v. Root, 11 Ohio, 100.
    In Moore v. Rittenhouse et al., 15 Ohio St., 310, Scott, J., page 315, interprets section 421 of the Civil Code — which is sec. 5375 of Revised Statutes.
    Is there any good reason for discriminating under the provisions of the above section or of section 5376, between lands of the debtors .in the county where the judgment is rendered and those of' the debtor in other counties seized in execution?
    . This court has heretofore said there was no reason for such a discrimination.
    As to personal propertj7-, the officer in order to make a valid levy, must- assume control of the property with the avowed purpose of holding it to answer the demands of the writ. The officer must maintain his possession’ and control to such an extent as to divest the possession of the owner.And such possession is prima facie a satisfaction •of the execution. Cars v. Adams, 3 Ohio, 223. Reynolds, et al., Ex’rs of Rogers, deceased, 5 Ohio, 169.
    As to real property, the officer does not disturb the debtor’s possessions, and no entry upon the real estate is necessary to constitute a levy. 'His indorsement upon the execution of a levy will ■constitute one to all intents and purposes. Morgan v. Kinney, 38 Ohio St., 610.
    And a subsisting levy, of an execution upon land is not a satisfaction of the judgment. Reynolds et al., Ex’rs of Rogers, deceased, 5 Ohio, 168..
    Keeping that distinction in view, what difficulty 'lies in the way of treating the liens on lands in another county as a judgment lien with all it implies? And thus make plain and consistent the interpretation of all sections of the statute bearing upon this subject.
    But it is claimed that section 5384 provides that the officer must proceed to appraise, etc. It suffices to say that that séction has as much reference to land in the county where the judgment is rendered as to lands of the debtor situated in another county. No distinction is made, and can it be contended that this section compels an appraisement and sale in every instance where lands are levied upon in execution? If so, of what utility is section 5380?
    It would seem that the case of Sturgeon v. Hull, 8 C. C., 269, stands alone, in this state, as authority for the proposition, that the lien upon lands in a county other than the county where the judgment is rendered is a mere execution lien, and that decision is apparently based upon provisions of section 5389, Revised Statutes.
    There is another ease decided by a majority of the same court, Martin V. Cook et al., Ex'rs, v. Dinsmore et al., 5 C. C., 385, which is perhaps not consistent with that view, but sustains the issue for the defendant in error.
    The question now raiséd as to the legality of the seizure in execution was not directly referred to • by the court below, for the reason, that it was not there made an issue. Aside from that, it has seemed to me quite unnecessary to do more than to refer this court for answer to the second and third questions of law presented by plaintiff in error, to the able, clear and convincing opinion of the court below, as reported in 11 C. C., 418.
   Williams, C. J.

The First National Bank of Smithfield, defendant in error, duly recovered a money judgment -against George Medill and others, in the court oí common pleas of Franklin county, on the 19th day of June, 1888, and on the same day caused an execution to be issued thereon to the sheriff of Jefferson county who, on the 21st day of the same month, levied the writ on a tract of land situate in that county. The levy was indorsed on the writ, with a full description of the land, and an entry theren .of was duly made by the sheriff in his foreign execution docket, showing the amount of the judgment, the description of the land, the date of the levy, and all other facts required by law to be entered on his docket. Those entries were made at the time of the levy, and indexed in the docket, direct and reverse. Afterwards, on the 10th day of July, 1888, the execution was returned, by order of the plaintiff’s attorney, without further proceedings; which fact was also entered in the foreign execution docket. Both the levy and entries fail to state that no goods or chattels could be found whereon to levy the execution, and it does not appear that an effort was made to find any.

The land on which the levy was made, was at the time owned by Medill, the judgment debtor, but was encumbered by a mortgage previously executed by him, which had been recorded. Underlying the surface of the land was a vein of stone coal known as “Number 8 vein, Pittsburgh coal,” which, after the levy of the execution, was released by the mortgagee from the operation of his mortgage, and soon thereafter sold and conveyed by Medill to one Ham, who then sold and conveyed the same to the plaintiff in error. These purchases were made in good faith, for value, and without actual knowledge of the execution levy, or the judgment. After the last purchase was made, the mortgage was foreclosed, and all of the land sold except the vein of coal which had been released, and the proceeds of the sale were insufficient' to reach the judgment of the bank, but were exhausted in the payment of the mortgage indebtedness, and prior liens. Thereupon the action below was brought by the bank, to which the plaintiff in error was made a party defendant, to obtain a sale of the vein of coal and subject the proceeds to the satisfaction of the bank’s judgment. The plaintiff in error set up its claim as a purchaser of the coal vein, and prayed that its title might be protected. The circuit court, to which the cause had been taken on appeal, found the facts substantially as above stated, and decreed the sale of the property in question, and the application of the proceeds to the satisfaction of the bank’s judgment; holding, that by the levy, the bank obtained a valid lien, and, that the plaintiff in error, under its purchase, took subject thereto.

The contention of the plaintiff in error here is, (1), that the bank acquired no lien on the land, because the levy was defective; or, (2), if a lien was thereby obtained, it expired with the execution, and therefore was not subsisting when the plaintiff in error made its purchase.

The defect in the levy, which it is claimed defeats the lien attempted to be obtained by it, is the omission of the sheriff to indorse on the writ the want of goods and chattels of the judgment debtor on which to levy the execution, and the absence of any showing that there was not sufficient property of that kind to satisfy the judgment. This claim is based’ upon section 5383, of the Revised Statutes, which provides that: “The officer to whom a writ of execution is delivered shall proceed, immediately to levy the same upon the goods and chattels of the debtor; but if no goods and chattels can be found the officer shall indorse on the execution the words ‘no goods,’ and forthwith levy the same upon the lands and tenements of the debtor which are liable to satisfy the judgment.” This section of the statute, it is contended, precludes the making of a valid levy on lands, -until the officer, after a proper search, has failed to find sufficient chattel property of the debtor to satisfy the writ; and the abseneé of an indorsement on the writ of the want of such property appearing in the entries on the execution docket, prevents •their operation as constructive notice binding- on subsequent purchasers or creditors. But it is generally held, that statutory provisions like those contained in the section referred -to, prescribing the order to be observed by the officer in subjecting the property of the debtor to sale on writs of execution, are for the benefit of the debtor, and may be waived by him. They are directory in their nature; and though a failure to observe the order prescribed is an irregularity which maybe corrected in a direct proceeding instituted by the debtor, the levy is not open to collateral attack on that ground. While the statute enjoins the duty on the officer, in making a levy of his writ, to first seize the debtor’s personal property before resorting to his real property, it does not declare that unless that order is pursued a levy on the debtor’s land shall be invalid, or ineffectual to create a lien; and the failure of the officer to proceed in the precise order directed should not deprive the creditor of the benefit of the levy, so long, at least, as fche debtor himself makes no objection to it. It may be to the advantage of the debtor to save his real property from sale, in preference to his chattel property; and this he may do by compelling resort first to be had to his chattel property when that is sufficient to satisfy the writ; but if he chooses not to exercise his right in that respect, a stranger who, at the time had no interest in the property, cannot be heard to assert it for him, nor interposeit as aground of objection to a levy on the debtor’s real property; nor would he seem to have any just ground of complaint where he buys after the lien has attached, and with legal notice of its existence.

An entry upon the land by the officer holding the writ is not necessary to constitute a valid levy; it is sufficient if the levy be indorsed on the writ, with a proper description of the land. The sheriff is required to keep in his office, a foreign execution ■ docket in which it is his duty to make entries of the date of each execution received by him from another county, and the date and amount of the judgment, and copy therein with his return, a full description of any real estate levied on; and the statute declares that “such entries so made shall be notice to subsequent purchasers and creditors of the matters therein contained.” When a levy is made upon land, the presumption is there were no goods on which to levy; but if a counter presumption should arise from the absence of an indorsement of no goods on the writ, that could only affect the burden •of proof in a controversy where the fact is material; that is, where the validity of the levy is attacked in a direct proceeding by a party entitled to attack it. So that, when, as in the case now-before us, lands are purchased from a judgment debtor after the levy of an execution upon them and while the levy is a subsisting one, with legal notice of its existence, the omission of the officer to indorse no goods on the writ, or to make search for chattel property, does not render the levy invalid, or ineffectual as a lien, as against such purchaser.

The further inquiry in the case relates to the question whether the lien created by the levy had expired, or ceased to be operative, when the plaintiff in error acquired his title to the real property involved in this litigation. This question must find its solution in our legislation on the subject, the most important provisions of which are contained in sections 5374, 5375 and 5380, of the Revised Statutes.

By the provisions of section 5374, the lands and tenements of a judgment debtor, not exempt by law, situated in any County in the state are liable to be taken on execution. And section 5375, provides that: “Such lands' and tenements, within the county where the judgment is rendered, shall be bound for the satisfaction thereof from the first day of the' term at which the judgment is rendered, * * * and all other lands, as well as goods and chattels of the debtor, shall be bound from the time they are seized in execution.” It is not doubted that, by force of this last section, the judgment operates as a lien on all the lands of the judgment debtor in the county, where the judgment is rendered. " This is so because the statute declares such lands shall be bound for the satisfaction of the judgment; and, as the same language is employed to create a charge upon the debtor’s lands situate in another county, when taken on execution issued on the judgment, it would seem to follow that, when so taken, the lien of the judgment operates upon them thereafter, as it does upon lands in the county where the judgment is ■rendered. No distinction in this respect is made by the statute; the only difference being with regard to the time when the lien attaches; and, in the one ease the lien is general upon all the debtor’s lands in the county, while in the other it becomes specific, and is limited to the lands actually seized., The reason for these differences is manifest. The judgment appears upon the public records of the county where rendered, and is constructive notice to all persons dealing with the debtor’s land situated in that county. Its existence and amount can be readily ascertained by an examina tion of the records. But it would be an unreasonable requirement that a person should make an examination of the public records of all the counties of the state, before he could safely acquire property which is shown to be clear by the records of the county where it is situated. When, therefore, an execution' issued to another county is there levied on lands, the sheriff is required to enter upon his foreign execution docket, • the date and amount of the judgment, by what court rendered, with a description of the land levied upon. This docket is a public record of that county, and the' entries become, by force of the statute, constructive notice, like other records of the county. Thereafter the judgment has the. same effect and operation as a lien on the lands so taken, as it has upon lands in the county were rendered, and the lien may be preserved and continued in force in the same way. The effect of the levy is to extend the lien of the judgment to the land seized, with all the legal-consequences incident to the judgment. The duration of the lien is not limited to the time the writ has to run. The language of section 5380, if execution he not sued out within five years from the rendition of the judgment, or if that period intervenes between executions, ‘ ‘the judgment shall become dormant, and shall cease to operate as a lien on the estate of the debtor, ’ ’ plainly imports that it shall not so cease to operate when executions are issued within the times mentioned; and that language is not limited in its application to the lien of the judgment on the lands of the debtor in the county where the judgment is rendered.

It is contented, however, that other provisions of the statute require the sheriff to immediately proceed after levy of the execution to cause the lands to be appraised and sold; and, that a return of the writ after a levy, and before sale, by order of the creditor, thereby interrupting the officer’s proceeding, and preventing the performance of his legal duties, discharges the levy, and terminates the lien. It is apparent that to sustain this contention would practically defeat the provisions of section 5380, which clearly permit the lien to continue for a period of five years between executions. Under' that section it has been the common practice to cause executions to be levied and direct a return of the writ without sale, in order to obtain or preserve a lien; and we do not understand^ to be questioned, that the statute permits this to be done where the levy is on lands situate in the county where the judgment was rendered. The operation of the statute authorizing the continuation of judgment liens in that mode is general, and without restriction as to where the lands may be situated; and the statutory provisions regulating the appraisement and sale of lands taken on execution are applicable alike in all cases without regard to the county in which the lands may be located. Any argument of inconvenience or delay to other creditors, resulting from that method of perpetuating the judgment lien, applies with no more force where the writ is levied outside the county, than it does to other execution levies; and there, can be no greater inconvenience or delay, in either case, than usually exists where property which other creditors seek to reach is encumbered with a valid lien. Such a lien does not interfere with the acquisition of subsequent liens, nor the remedies for their enforcement, nor the remedies of other creditors; and a purchaser always buys subject to a lien disclosed by public records which he is bound to examine. An examination of the sheriff’s foreign execution docket, by the plaintiff in error, before the consummation of his purchase, would have afforded sufficient information of the bank’s lien upon the property, and that the judgment had not been satisfied or suffered to become dormant; and the circuit court, in our opinion, committed no error in directing the application of the proceeds of the sale to the satisfaction of the judgment.

Judgment affirmed.  