
    Israel N. Pickens vs. Joseph Marlow.
    The levy of an execution upon sufficient property to pay the debt, is only a -prima facie satisfaction of the execution, and if it prove not to be a real satisfaction, the lien of the judgment, and the right to another execution, will not be affected thereby.
    A levy of an execution upon real estate, and the postponement of the sale thereof, for a period of twelve months, by the defendant therein taking the benefit of the valuation law-, will not remove or destroy the lien of the judgment on which the execution issued.
    where an execution was levied on land of the defendant, and the valuation law was claimed, and the sale of the property thereby was postponed, and the execution held up for twelve months, and a junior judgment against the same defendant was, in the interval, levied upon other lands of the defendant, and the same was sold ; and the execution on the first judgment was not satisfied by asale of the land levied on, and valued ; and another execution on the first judgment was levied on the land sold under the junior judgment, and the same land was resold: Held, that the purchaser at the last sale, buying under the older judgment, would be entitled to the property. Clayton, J. dissenting.
    By Clayton, J dissenting. The law, authorizing the defendant in an execution to claim the valuation of his property, and providing that if it did not bring, when exposed to public sale, two-thirds of its appraised value, the sale should be postponed twelve months, is, as to contracts made before its passage, unconstitutional.
    On appeal from the circuit court of Holmes county.
    The appellee instituted an action of ejectment against the appellant; the jury brought in a special verdict in the case, which is recited, substantially, in the opinion of the chief justice.
    
      Wilkinson and Miles, for appellants.
    The appellant purchased the locus in quo under a judgment rendered in October, 1840, and the appellee, Marlow, purchased under a judgment which was rendered in October, 1839. Mar-low purchased under an alias fieri facias; the first fi. fa. which issued on the judgment haying been levied on lands lying in a different county (Carroll) from that in which the locus in quo is situate, which is the county of Holmes. The operation of the fi. fa. which first issued on the judgment rendered in 1839, was suspended by an appraisement'which was had under the act of the legislature, providing for the valuation of lands levied on by virtue of a fieri fiadas ; and it was during this suspension that Pickens, the plaintiff in error, purchased the land which is the subject of controversy» We contend that, as to Pickens, the valuation of the appraisers, and the return of the fact by the sheriff constituted asatisfaction of the judgment under which Mar-low purchased. We admit that it did not operate a satisfaction as to the plaintiff. He would have had a right, after the first levy was disposed of, to sell any property of the defendant which had not been judicially disposed of during the stay which had been occasioned by the action of the appraisers. He had a right to the money while in'the hands of the sheriff, which was made through the judgment under which Pickens purchased; provided such right was asserted after the extinguishment of the first .levy. He has perhaps even now the right, (unless his judgment is satisfied,) to the purchase money, paid by Pickens at the sale, under the junior judgment; and to maintain assumpsit against the plaintiff in the junior judgment, for the sum so paid, as money had and received to his use; and if the estimate of the appraisers had not been greater than the amount of the senior judgment, the lands would of course have been liable to sale under the elder judgment, after they had been sold under the younger. But with this public evidence that a sufficiency had been levied on to satisfy the older judgment, it is believed that the law, whose special aim it has ever been to enhance the product of judicial sales, by insuring, (so far as it can do so without injustice to others,) the utmost security to purchasers, will not disturb the appellant in the enjoyment of a title acquired in such a manner.
    By the construction which we seek to give the statute, the law will be made to harmonize in all its parts, and to adapt itself so completely to the interests of those it may operate upon, as to serve as a shield of protection, instead of an instrument of mischief. The creditor will not be injured, since he can reach the fund in the hands of the purchaser, if he has not paid it over, or in those of the sheriff, or the vendee, if he has. Those disposed to purchase under the senior judgment, will be amply secured against harm in the warning which the public record of appraisement will efford them, while the purchaser with good faith under the younger judgment, secure in the feeling that he cannot be misled by the recorded acts of the officers of the court, will enhance, by the confidence of his bidding, the product of the sales. For these reasons, we think that a politic and just construction of the statute would support the title of Pickens.
    
      Brooke, for appellee.
    The facts presented by the special verdict in this case, do not in any way distinguish it from the cases of Wilkes & Andrews, and Green & Robinson, reported in 6 Howard. The doctrine there established is, that some active interference, neglect or fraud on the part of the oldest judgment creditor, is necessary in order to cause a postponement of his lien. In the case now before the court, the act by which the operation of the elder judgment was temporarily suspended, was the act of the defendant therein. He claims to have the property that was levied on by the first execution, emanating from said judgment, valued or appraised, it failing to bring two thirds of its appraised value, the suspension of the sale followed as a legal consequence : with all of which the plaintiff had nothing to do. This suspension differs nothing in effect from the operation of an injunction. It is a mere suspension, nota destruction of the judgment lien. 4 How. 178. It was insisted by the appellants, in the court below, and doubtless will be here, that inasmuch, as the levy under the elder judgment, in Carroll county, was on an amount of property sufficient, according to the appraisement, to satisfy it, it was in fact during the suspension satisfied, and thus therefore an execution for a younger judgment might issue, and be levied on other property. The technical rule that a levy on property, is for the time being a satisfaction of the execution, does not apply to real estate. This is true as well in this county where realty is the subject of levy under a fi. fa. as in England, where it is not. (See 5 Yerger, 228.) But if it were otherwise, the rule could have no application. By that rule is simply meant, (if anything is meant), that the particular execution under which the levy is made, is “ pro hac vice ” satisfied. It surely cannot' be contended that the levy amounts to a satisfaction of the judgment. And under our law, the lien is conferred by the judgment, and not by the delivery of the execution.
    But we contend, that the special verdict does not show that there was a levy on property sufficient to satisfy the execution,but directly the reverse. It is true the appraisers said it was worth such an amount; but when that estimate is tested by an offer to sell, it is proved to be false, by the property failing' to* command two thirds of its said estimate value. Now, the true value of any article, is the amount of money it will sell for in market, not the speculative or imaginary estimate that may be placed upon it, or guessed at, by appraisers, although those appraisers may be acting in pursuance of law, and under the sanction of an oath. The falsity of the estimate made’ by the appraisers, is further proved by- the sale that was- finally made, after the expiration of the stay, said sale being for only about $>700; so that the assumption of the appellant, that the suspension of the execution under which we claim, and during whidt suspension he bought, was caused by alevy on property sufficient to satisfy it, is utterly groundless.
    This suspension of the elder judgment, or rather the postponement of sale under it, could no- more affect its lien than-could a voluntary postponement -by the sheriff. Suppose A. and B. have judgments against C. of different dates, A.’s being the elder. A.’s executionis levied on land, supposed to be sufficient to satisfy it. On the regular sale da-y, the sheriff, either of his own accord, or at the instance of the defendant, postpones the sale for a month or two months. In the mean time, an execution from B’s'. judgment is levied on' other property of 0. which is sold. Now will any one contend, under the deci-' sions heretofore made by this court, that A. in case the property levied on by virtue of his execution, is not sufficient to satisfy it, will not have a right to resort to the property sold by B-? Surely not, yet to all intents and purposes this is precisely the case at bar. Here the postponement of sale was made at the- instance-of the defendant in the execution, by his claiming the benefit of the valuation law. The only difference in the two cases is, that in the one at bar, the law authorizes the sheriff to postpone, in the other, he acts voluntarily; which, in reason, is no-difference at all.
    This case is not without analogy in the books. I find it settled, that after a fi. fa. is exhausted, that an elegit may issue, that will retain the original lien of the judgment. 4 Kent, 436. 4 Peters, 124. 6 Randolph, 618. If this be true, it follows, of course, in the case under consideration, that after the exhaustion of the levy made by virtue of the execution that first issued from the judgment under which we claim, the plaintiff, thereon, has a right to resort to another, without having his original lien the least impaired. That original lien extended to all the property of the defendant; if it was unimpaired by any act of his, it is undeniable that the appellee holds a good titlp to the locus in quo.
    
    
      George S. Yerger, on the same side.
    The valuation spoken of, was to a greater amount than the judgment, and this the counsel of Pickens contends amounted to a satisfaction of it. But I contend that the valuation was false, inasmuch as on exposure to sale, the property fails to bring two thirds of it, and finally sold only for $700; the judgment was for upwards of $4000.
    1. The sale under an elder judgment passes the title, notwithstanding a previous sale made under a younger judgment. Andrews v. Wilks, 6 Howard Rep. Rankin v. Scott, 12 Wheat. 177.
    
    
      2. The lien of the elder judgment will be discharged as to a younger judgment, if the elder has been suspended by contract, or by the order of the party. Planters Bank v. Michie, 4 Howard’s Rep. 130, and Campbell v. Foute, not reported.
    3. The levy and valuation law, prevented any execution from issuing or from being levied on other property, during the time allowed by law. This was decided two terms ago by this court in a case from the Northern District, not yet reported, in which Judge Sharkey delivered the opinion of the court. In this case, the stay of the execution was not with the consent of the party, and of course did not discharge his lien.
    4. The levy and valuation of the articles levied on, is prima facie a satisfaction, until the levy is disposed of. The sale of the property levied on, disposes of the levy, and if it is not enough to satisfy the whole payment, the balance is not satisfied. 19 Wendell’s Rep. 80. Miner v. Hart, 1 Marshall, 292. Duncan v. Harris, 17 Serg. & Rawle, 436. 8 Cowen, 194.
   Mr. Justice ShaRkey

delivered the opinion of the court.

In October, 1839, Johnson & -Fisher recovered judgment against J. C. Pickens and W. L. Pickens. In June, 1840, an execution issued thereon, directed to the sheriff of Carroll county, the judgment having been obtained in Holmes county. The execution was levied dn land which the defendant claimed to have valued, which was done, and the valuation greatly exceeded the amount of the judgment. On the 25th of March,-1841, the land was offered for sale, and failing to bring two thirds of its value, the sale was postponed for twelve months, according to the provisions of the valuation law. In April, 1842, the land so levied on -was sold under a venditioni exponas, for $730, a sum less than the judgment.

On the 28th of October, 1840, Booth recovered a judgment against W. L. Pickens, in the circuit court of Carroll county, on which execution issued on the 7th,of June, 1841, which was levied on the tract of land in question, as the property of W. L. Pickens. On the 20th September, 1841, the land was sold, and purchased by J. W. Pickens, the plaintiff in error, which sale took place pending the stay ór suspension of the execution under the older judgment of Johnson & Fisher.

After the expiration of the stay of Johnson & Fisher’s execution, under the valuation law, and the sale of the land levied on under it, in Carroll county, they issued an alias ft. fa. to Holmes county, which was levied on the tract of land which had been purchased by J. W. Pickens, under the younger judgment of Booth, pending the stay of the older judgment. At this sale, the defendant in error purchased theland, and brought ejectment to recover possession. The above facts are the substance of a special verdict in the case, on which the court rendered judgment for the plaintiff below.

The question which is presented by these facts, may be thus stated : Does the sale under a junior judgment cut out the lien of an elder judgment, which had been levied on other property, and suspended for twelve months, under the valuation law, because the property so levied on did not sell for two thirds of its value? Or, to place it in a different shape, does a judgment creditor lose his priority of lien by a levy, which levy is suspended under the valuation law 1

The elder judgment constituted a prior lien; and it was held in the case of Andrews v. Wilkes, 6 How. 554, that such a lien cannot be destroyed in favor of one having notice of its existence, unless it be by some act of the party who holds the lien. It is important that this principle should be kept in view in the present case. But it is insisted that the levy under the older judgment was a satisfaction, and discharged the judgment lien. It is true that a levy on sufficient property is said to be a satisfaction. It is absolutely so for some purposes. For instance, if the sheriff make a levy on sufficient property to pay the debt, and waste it, or it is lost by his negligence, the defendant is discharged. But if he should levy on property supposed to be sufficient, which should turn out not to be so when sold by him, then the plaintiff is entitled to his execution for the balance. The value cannot be so fixed but what it may vary between the levy and sale, and as the sheriff is required by law to sell to the highest bidder, the sale is the true criterion of value. The effect of a levy is to stay the plaintiff’s hands. After a levy on sufficient property the plaintiff cannot have a pew execution, but must pursue the first levy until it is disposed of, but if it should turn out to be insufficient, then he is entitled to another execution. Gilbert on Executions, 24, 25. Hence it is manifest that a levy is but a prima facie satisfaction, and so it was held in Luther’s case, 19 Wend. 79. If it were anything more, the plaintiff’s remedy would be at an end, because he could not sue out an execution^ after actual satisfaction. This prima facie satisfaction does not destroy the lien. If it did, the. object of the law giving the lien would be defeated. Instead of creating a lien for the purpose of producing satisfaction, it would only confer the right to make a levy, and then leave the door open to other creditors, whose claims would be preferred, even if the first levy should not produce one fourth of the debt. But there is a feature in this case which it is said takes it out of the operation of the general rule, so far as the plaintiff in error is concerned, and that is the effect of the levy and appraisement, it being insisted that as to the plaintiff in error, this was an actual satisfaction, though not so as to the plaintiff in the execution. If it be true that a judgment lien is only lost by the act of the party holding it, this position is not tenable. I do not perceive how this case differs in principle from the ordinary case of a levy without appraisement. The law providing for the valuation of property levied on, requires that such property shall sell for two thirds of its value; and in case it does not, if it be land, then the sale shall be postponed for twelve months, at the expiration of which time it is to be sold under a venditioni exponas, for what it will bring. The effect of this law is a legal suspension of the plaintiff's right to prosecute his execution. It is a legal stay, brought about by the defendant in the execution, without the consent or agency of the plaintiff; and, according to the principle with which we set out, how can it destroy the lien 1 The valuation gives to the plaintiff no additional security. Its effect is sufficiently prejudicial to the plaintiff without giving it the effect of destroying his lien. The valuation and postponement of sale are mere legal steps which precede the plaintiff’s right to consummate his lien, which do not limit it to narrower ground than it occupied before. Suppose the law, instead of providing for the valuation, had increased the time for which real estate is to be advertised before sale, leaving personal property to be sold on shorter notice, could the. purchaser of personal property, under a junior judgment, contend that the pending levy under an older judgment on land was such a satisfaction as to relieve the personal property from the older lien ? He could not; and yet such a casé would not 'differ in principle from the one before us. The plaintiff in error cannot claim protection on the ground that he had a right to act upon the presumption that the valuation was evidence of a sufficient levy. He must have known that the land must ultimately sell for what it would bring, regardless of the valuation. Every purchaser at sheriff’s sale under a junior judgment, after the levy of an older one on different property, might claim protection on the same ground, for every levy is presumed to be a sufficient one. And yet such purchasers must take the risk of the sufficiency of the levy. There is nothing in the present case which can change the principle, and although the extravagant value placed on the land might have induced the plaintiff in error to believe that he could purchase without danger from prior liens, yet he is hot thereby legally protected. There are cases in which the rights of purchasers under younger liens will be protected, but they are made to turn upon the act Of the party claiming the benefit of the older lien. Thus in the case reported in 19 Wend. 79, the sheriff made a levy on personal property, but permitted it to remain with the defendant, who removed it. The sheriff was compelled to pay the money, and having obtained an assignment of the judgment, he obtained leave to sue out execution, but was not permitted to levy the execution on land sold under á junior judgment, because he had made a levy on personal propérty', which was a prima fade satisfaction, and was so careless as to permit it to be taken away. So in the case of Wood v. Torrey, 6 Wend. 562, a perpetual stay of execution was awarded in favor of a bona 'fide purchaser of lands bound by a judgment, where it appeared that a levy had been made upon personal property, to an amount sufficient to satisfy the judgment; but the decision is placed upon the ground of the plaintiff’s folly in relinquishing the levy, to the prejudice of an innocent purchaser.

In support of the view taken of this qiiestioh, we may justly advert to a distinction which exists between a levy on land, and a levy on goods ; the right to the goods is changed by the levy, and hence it is said to be a satisfaction; but the title to land is not changed by levy. The course of proceeding is also different, under the appraisement law; if land levied on does not sell for two thirds of its value,-the possession of the defendant is not interrupted, but the sale is suspended for twelve months, without any additional security to the plaintiff. In case of a levy on personal property, the defendant is required to give a bond, with three undoubted securities, conditioned for the delivery of the property, and if the condition be not complied with, the bond has the force and effect of a judgment. Now, as a levy on land neither changes the possession or the title, the reason for holding a levy to be a satisfaction, seems, at least to some extent, to fail. If a sheriff levies on personal property, he is responsible for its value, because it is his duty to take it into possession, but he is not responsible for the value of land.

As the lien of the older judgment was not destroyed, the sale of the premises in question necessarily overreached the prior sale, under the junior judgment, and the court having so decided, the judgment must be affirmed.

Mr. Justice Clayton

delivered the following dissenting opinion :

I do not concur in the opinion of the majority of the court, in this case ; and I proceed to state the grounds of my dissent, rather in obedience to the requisitions of the statute, than from any wish of my own.

The lien of the judgment, as created by the act of 1824, extends to all the property of the defendant. This lien is, at first, a general one; but when the execution is issued, and is levied, it ceases to be general, and becomes special, and fixed to that property on which the levy is made. Lusk v. Ramsay, 3 Munford. When the property thus levied on is sold, if it does not produce enough to pay the debt, the general judgment lien again comes into existence. Estell v. Mitchell, 8 Yerger, 452. But when it is revived, it cannot overreach sales made in the interim, by other executions ; to give it that effect, would be to extend the doctrine of relation beyond its legitimate scope. That never goes so far as to interfere with the rights of third persons. Griswold v. Bard, 4 Johns. 230. My conclusion, therefore, is, that sales under executions, made during the suspension of proceédings by the valuation law, are valid, though they take place under junior judgments.

I entertain, moreover, a strong conviction, that the valuation law was, as to contracts made before its passage, unconstitutional. My opinion is not unsupported by adjudications upon similar statutes. 5 Monroe, 98. January v. January, 7 Monroe, 544. Peck’s Rep. p. 1. Bronson v. Kinzie, 17 Peters & 1 Howard’s U. S. Rep.

If the delay proceeded from a law which had no binding efficacy, it was not justifiable on the part of the plaintiff, and he ought not now to be permitted to interfere with the rights of those who did proceed. The delay is attributable to the negligence or folly of the plaintiff, as in the case of Wood v. Torrey, 6 Wend., and its consequences should rest on him alone.

I cannot give sanction to a law which I believe to be unconstitutional, merely because the point has not been made in argument.

It is unnecessary to go more into detail, because the opinion of the other judges settles the law.  