
    Morgan v. Kinney.
    1. Mo entry by the sheriff upon real estate is necessary to constitute a valid levy thereon.
    2. The levy of an execution from another county, when indorsed on the execution, and before entry thereof, as required by the act of 1860 (2 S. & C, 1402), is complete.
    8. Under a deed of general assignment for the benefit of creditors, the assignee takes the real estate subject to all valid liens existing thereon against the assignor.
    Error to the District Court of Morgan county.
    
      Rees d¡ Gallaher, for plaintiff in error:
    The assignee represents the creditors, and not the assignor. Hanes v. Tiffany, 25 Ohio St. 549; Kilbourne v. Fay, 29 Ohio St. 264, 278; Lindeman v. Ingham, 36 Ohio St. 1; 16 Ohio St. 433, 440. Judgments and executions have no force as liens except what is given them by statute. McCormick v. Alexander, 2 Ohio, 65, 71.
    
      We think there was no valid levy on the property, for three reasons — all fully admitted by the pleadings. 1. There was personal property of the defendant in the county subject to levy. 2. No entry was made on the foreign execution docket, as required by law. 3. The levy was not made in such manner as to seize the property in execution, as required by statute. As to the first proposition, it was of course the duty of the sheriff to first take personal property. Laws of 1878, 681, § 10. And if this proceeding was to vacate the levy, the objection would certainly be good. Freeman on Ex. § 279. As to the second proposition, the statute in force in 1878 provided for entries upon the foreign execution docket; and that such entries, so made, should be notice to subsequent purchasers and creditors. S. & G. 1402, § II. (14). Unless, as a corollary to this, the failure to make such entries is a failure of notice to purchasers and creditors, then of what utility is the statute?
    As to the third proposition, the statute then in force provided, in effect, that a judgment from another county than that in which the land lay, should be a lien upon such land from the time the same was “seized in execution.” Laws of 1878, 680, § 4. As to personal property, it is, of course, unquestioned that “ seized in execution ” has a .very definite meaning. 13 Ohio St. 79; 14 Ohio St. 18. We submit that some definite meaning should be given it as to real property; and that under our law, the kind of levy required where the judgment is a lien, and where it is not, may be two very different things ; and that, consequently, the substantially doing away with a levy, by levying from the recorder’s office, if good where the judgment is a lien, is not sufficient to make a lien. Freeman on Ex. § 280; 4 Kent, *432, note f. In the only other case in which a lien on lands is obtained by act of the sheriff, he is required t® so proceed, that the public, as well as parties interested, shall have notice. Rev. Stat. § 5528.
    
      Geo. Duncan, for defendants in error:
    1. The provision of the statute that the sheriff first levy on goods and chattels is directory. Freeman on Ex. § 279.
    
      2. A return that the officer can find no goods and chattels justifies a levy on real estate. Treptow v. Buse, 10 Kansas, 170.
    3. The officer was not bound to exhaust the personal property of all the defendants before levying on the real estate of either. Barton v. Banton, 6 J. J. Marsh. 235; Drake v. Murphy, 42 Ind. 82.
    4. The execution being from another county the judgment became a lien upon the land when seized in execution. Laws 1878, 680, § 4.
    5. If the sheriff asserted on the execution that he levied on the land, it was then seized in execution. It was not necessary for the sheriff to go upon the lands. Butler, J., 3 Hill S. C. 292; Rodgers v. Bonner, 45 N. Y. 379; Perrin v. Everett, 13 Mass. 128; Freeman on Executions, § 280.
    6. The statute expressly providing that the lien takes effect on seizure in execution, the fact that the sheriff made no entry as required by section II. (14) S. & C. 1402, would not prevent the lien from having its effect. The same principle ought to apply as when a mortgage is left for record. Tousley v. Tousley, 5 Ohio St. 78, 86.
    7. The plaintiff can claim no relief by reason of the entry required to be made on the foreign execution docket not having been made, unless he was misled thereby. There is no claim of the kind in plaintiff’s petition. The fair inference is that he had knowledge of the lien independent of'the notice. Brown v. Kirkham, 1 Ohio St. 116, 118.
   Longworth, J.

The decision in this case depends entirely upon legal issues, the judgment below having been rendered upon demurrer. The facts of the case are correctly stated in the brief of the plaintiff in error, and are as follows :

On October 10, 1878, the defendants, Gray & Smith, obtained a judgment in the court of common pleas of Cuyahoga county against A. "W. Anderson and others, and execution was at once issued thereon to the sheriff of Belmont county. On October 12,1878, the sheriff, without leaving St. Clairsville, twelve miles distant from Bellaire, indorsed upon the writ of ^execution in his hands, that for want of goods and chattels whereon to levy, he levied upon certain real estate, describing the town lots in Bellaire, as the property of A. ~W. Anderson. But no record, other than this, was made in the sheriffs office; and no entry of any hind was made on the foreign execution docket, until after the filing of the assignment deed hereinafter mentioned. On October 12, 1878, there was, in Belmont county, belonging to A. W. Anderson and his co-defendants, personal property subject to levy, amply sufficient to satisfy said execution. On October 21, 1878, A. W. Anderson made an assignment for the benefit of creditors, and his assignment deed was duly filed with the probate judge the same day, and the assignee gave bond and qualified according to law ; and as such assignee brought this suit. At the time this suit was brought, the sheriff had made no return of any of his proceedings under said execution,'to the court from which the execution issued.

The suit was to enjoin the sheriff from selling the land under this execution, the petition of plaintiff was dismissed in the court of common pleas and judgment rendered for defendant which judgment was afterwards affirmed in the district court.

It seems to us that the decision of this case depends entirely upon the question whether the indorsement by the sheriff upon the writ of execution constituted in itself a valid levy upon the land. The doctrine is well settled that in respect to real estate the assignee for the benefit of creditors stands in the shoes of his assignor, and takes no greater estate than that held by him. He takes subject to all liens and incumbrances existing at the time of the assignment and is not to be regarded in equity as a bona fide purchaser without notice. See Burrill on Assignment, § 391, and numerous cases cited in the notes to the third edition.

By force of statute, an entry by the sheriff upon the foreign execution docket operates as notice to the world; and it is plain that its omission in the present case, whatever might bo its effect as against a bona fide purchaser without actual notice, cannot be taken advantage of by the assignor who cannot protect himself by want of notice, either actual or constructive.

Neither can the assignor complain that at the time of the levy he was possessed of personal property sufficient to satisfy the judgment. If he did not choose to apply such property to its payment he cannot complain that the sheriff, failing- to find goods and chattels whereon to levy, proceeded to levy upon land.

Was then this levy a valid one? Clearly it was, unless under our statute the expression “ seized in execution ” shall be construed as making an actual seizure of some kind essential. See 75 Ohio L. 680, § 4. In Gwynne on Sheriffs, 308, the law is stated thus: “ No entry by an officer on real estate is necessary to constitute a levy. The officer may remain in his own office and not even go within view of the land : he need not seize upon any twig, turf, or other part thereof as symbolical of the whole. Ilis indorsement upon the execution of a levy will constitute one to all intents and purposes.”

From the time that a valid levy is made, the land is in legal sense seized in execution,”' — that is, rendered liable for its satisfaction. Nowhere in the statutes is the officer directed to make any actual seizure, which.it would seem could only be done by taking possession of the land and ousting the judgment debtor. It would be contrary to all previous notions concerning the duties of such officers to hold that prior to sale or appraisement, and upon the mere receipt of the writ it becomes their duty to enter upon the debtor’s land and take possession.

Judgment affirmed.  