
    Mason v. Hull, Assignee, et al.
    
      Lien from foreign execution waived, when — Rule as to priority of creditor's liens — Effect of exclusive fund being property of surety for debt.
    
    1. A lien obtained by the levy of a foreign execution on the lands of the judgment debtor is not waived nor abandoned by suing out another execution on the judgment and causing it to be levied on the same lands.
    2. The rule that a creditor who has a Jien on one fund only may compel another creditor having a prior lien thereon and'also a lien upon another fund to exhaust the latter before resorting to the former,is applicable only where both funds are the property of the common debtor; ithas no application where theexclusive fund is the property of surety for the debt for which that fund is bound.
    (Decided November 17, 1896.)
    Error to the Circuit Court of Crawford county.
    This case was argued and submitted with the preceding one, Coal Comrpany v. Bank, ante, page 233. The report of that case disposes of some of the questions involved in this one. A statement of the facts that are material in the consideration of other questions here presented, will be found' in the opinion.
    
      Cahill Bros, and J. C. Tobias, for plaintiff in error.
    The question arises upon the distribution of the proceeds of the sale of 160 acres of land described in the original petition as to which has the priority of lien, Mason or Sturgeon. Here_ are the respective dates:
    Mason’s judgment, November 17, 1886.
    Mason’s first levy, November 30, 1886.
    Mason’s second levy, November 11, 1891.
    
      Sturgeon’s first mortgage, August 22, 1887.
    Sturgeon’s second mortgage, April 7, 1888.
    Sturgeon alleges that Mason’s executions of date November 17, 1886, and November 7, 1891, were at the same time levied upon the lands of A. B. Charlton and that if the court finds said levies valid and subsisting liens upon the lands of Michael Charlton superior to Sturgeon’s lien, then Mason, having other security, may be required to exhaust his other security first.
    If Mason’s lien had been on several tracts of land belonging to said Michael Charlton, assignor, and Sturgeon’s lien on but one of said tracts, then the equity he seeks to enforce would be applicable*
    In other words the several creditors must have a common debtor, or debtors; that -is, all the parties seeking aid must be creditors of the same common debtor. 1. Story’s Equity (10th ed.) sections 633, 634, 642, 643, 644 and 645. Cary v. Folsom et al., 14 Ohio, 365; Green v. Ramage et al., 18 Ohio, 428; Farmers’ Loan and Trust Co., v. Walworth, 1 N. Y., 434-451; Inqalls & Stockman v. Morgan, 10 N. Y. 178-186.
    Has Mason’s judgment lien been kept alive, and is it a valid and subsisting lien on said 160-aere tract in Crawford county, superior in priorty to said Sturgeon’s said mortgage liens?
    For want of goods or chattels, each writ was levied on said premises, and properly entered of record in the sheriff’s Foreign Execution Docket, and said executions duly returned. Does this keep the said judgment and lien alive? The sheriff’s return on each of said executions stands unimpeached, and neither have been set aside. It is a legal maxim that a judgment is ahoays to be taken for truth, and we take it that the official records touching the same are of equal verity, until set aside by due course of law.
    Sturgeon denies that said pretended levy of November 30, 1886, ever became or was notice to him. It is not denied but what the sheriff entered the levy of record as aforesaid.
    It is claimed that the second writ issued November 7, 1891, should have been a venditioni exponas instead of an alias execution. A venditioni exponas is a judicial writ addressed to the sheriff commanding him to expose to sale goods which he has already taken into his hands to satisfy a judgment creditor (Wharton’s Law Dictionary).
    These lands were not taken into his hands, but levied upon.
    Liens upon land are given by statute, and cannot be extended in equity. The existence, validity, and extent of a judgment lien are matters purely legal, dependent upon statutory provisions. Corwin v. Benham, 2 Ohio St., 37; Douglas v. Huston et al., 6 Ohio, 156; Gorrell v. Kelsey, 40 Ohio St., 117, 120.
    It is claimed that the suing out an alias fi. fa. instead of an venditioni exponas was a waiver of the former levy.
    It was well settled in Ohio that such is not the law. Bouton v. Lord & Hathaway et al., 10 Ohio St., 453, Liebman v. Ashbacker, 36 Ohio St., 94; Lessee of Paine v. Mooreland, 15 Ohio, 436.
    If the sheriff who made the levy be no longer in office a court of equity will hold that as done which should have been done for the purpose of upholding the levy. In such case, if the sheriff receiving the writ and making the levy, make the proper entry upon his Foreign Execution Docket in every respect as required by section 1212 said entry will be notice to subsequent purchasers and creditors of the matters contained therein, and such levy will be good as against them. Cook et al. v. Densmore et al., 5 C. C., 385-391.
    Section 5405. See also sections 5415 and 5375. Patton v. Sheriff of Pickaway County, 2 Ohio 396-399.
    Under our statute why is a judgment lien not made perpetual, if the judgment creditor continue to issue an execution before the expiration of five years from the issuing of the last execution and so on act infinitum. Reynolds v. Calb, 15 Neb. 378, citing section 5380 R. S. O. and Freeman on Judgments, section 3919. The character, operation and extent of the lien must be ascertained by the terms of the statute creating and defining the same. Beall v. White, 94 U. S., 173.
    The lien arises from or is incident to the judgment, and can be preserved only by keeping the judgment alive. Wuest & Loe v. James et al., 51 Ohio St., 230.
    At the time the first levy was made (November 30, 1886), Mr. Sturgeon had no interest in or claim whatever against said judgment debtor, Michael Charlton. How can he be heard now to proclaim the laches of the sheriff or dictate what the sheriff should have done in order to complete his levy November 30, 1886? Freeman on Execution, sections 108, 279 and 282; Toot v. Wagner, 30 N. Y., 9.
    The sheriff is not responsible for his failure to levy upon property unless he is guilty of fraud in the premises. Mueller et al. v. Bates et al., 2 Disney, 318.
    No entry by the sheriff upon real estate is necessary to constitute a valid levy thereon.. The levy of an execution from another county, when indorsed on the execution, and before entry thereof as required * * * * is complete. The officer may remain in his own office and not even go within view of the land and make a valid levy. Freeman on Execution, section 280 a. Morgan v. Kinney, 38 Ohio St., 610; Kelley v. Vincent, 8 Ohio St., 415.
    Mortgages are a class of securities used for the purposes of investment and unavoidably requiring from, those who would take them with prudence and safety an inquiry into the value, condition and' title of the property upon which they rest. Baily v. Smith, 14 Ohio St., 396.
    The lien of a mortgage arises from the acts of the parties, while the lien of a levy arises by operation of law. A levy will not be lost except by some positive act showing an intention or willingness to part with the control of the property levied on or for a neglect to enforce it' for so long a time as to indicate that it has been purposely abandoned. Houk v. Condon, 40 Ohio St., 569. A statute giving a lien is a remedial statute and is to be liberally construed so as to give full effect to the remedy. Jones on Liens, section 105.
    The lien of a judgment on the lands of a debtor created by statutes and limited to a certain period of time is unaffected by the circumstance of the plaintiff not proceeding upon it (during that period) until a subsequent lien has been obtained and carried into execution, unless the lien be intrinsically defective or is displaced by some act of the party holding it, which shall postpone him at law or in equity. Mere delay in proceeding to execution is not such an act. Rankin et al. v. Scott, 12 Wheat, 177, and notes; Lawrence v. Belger, 31 Ohio St., 175. The statute (section 5383) requiring the officer to immediately levy the same upon the goods and chattels of the debtor is merely directory. And a judgment lien upon land is not discharged against a subsequent purchaser by the fact that chattels were once levied upon and the levy released by the mutual consent of the parties to the execution. Ford v. Shinner et al., 4 Ohio, 378.
    And we hold that as an execution is a proceeding emanating from a judgment, for the purpose of enforcing the judgment, that like a judgment neither the execution or return thereon can be collaterally impeached.except in cases of fraud or mistake. Newnam's Lessee v. The City of Cincinnati, 18 Ohio, 323; Callen et al. v. Ellison, 13 Ohio St., 446; Faran, Administrators. Robinson et al., 17 Ohio St., 243.
    A sheriff’s return is parcel of the record and in an action of debt upon it nil debet is no plea. 2 Saund. 344, n. 2. The sheriff cannot be permitted either in pleading or by evidence to falsify his return. 6 Mass. 325; 7 Mass. 388. A scire facias lies to a sheriff’s return; it is, therefore, a part of the record. Crake Jas. 514. When the sheriff returns that he has recovered a certain sum of money made by execution, this shall charge him although none was actually recovered. 8 Johns. 16. These authorities show that as between parties and privies and the officer, except where the latter is charged upon its falsity, the return is matter of record and therefore- conclusive. Hill v. King, 4 Ohio, 135; Bank of Gallipolis v. Dornigan, 12 Ohio. 221; Hammer v. Nevill et al., W. 169.
    The fact which is not disputed that the levies were made by sheriffs Faeth and Birk respectively, recorded in the Foreign Execution Docket of Crawford county wherein the land is situate, was sufficient of itself to have put said Sturgeon upon inquiry had he but looked; having failed to look he must abide the consequence. Williamson v. Brown, 15 N. Y. 354; Cunningham v. Buckingham 1 Ohio, 264; Ranney v. Hardy, 43 Ohio St., 157.
    If there was sufficient record contained in said Foreign Execution Docket to have put said Sturgeon up on his guard or induced an inquiry in the mind of an intelligent person, or a person of ordinary prudence, he is chargeable with knowledge or notice of the facts therein contained. Cambridge Valley Bank v. Delano et at., 48 N. Y. 326.
    Aside from mere notice of prior liens or equities, the courts draw a distinction between mortgages and other contracts affecting the interest in lands, holding that a mortgagee is not to be treated as a purchaser; that mortgages are bare securities to protect either equitable or legal rights; that thejr are neither the legal right nor the equity; that the right or interest to which a mortgage may attach is absolute; that it is secondary and ■ dependent; that it dies when the debt or right to which it is attached is destroyed, and could never exist without some right to which it can attach. It is in its nature an incident. White v. Dennian et al., 1 Ohio St., 111.
    Judgments and decrees for the payment of money generally, are the only ones which give liens under the statute. Myers el al v. Hewitt et al., 16 Ohio, 449.
    Has Mason done anything that would constitute an actual or implied waiver? A waiver to be effectual, must not only be made intentionally, but with knowledge of the circumstances. Bennecke v. Conn. Mat. L. Ins. Co., 105 U. S. 355.
    It is for the party himself to elect when and under what circumstances he will yield up a security for the payment of his debt which he lawfully possesses and the courts will not interfere. ' Boos v. Ewing et al., 17 Ohio, 500.
    In this ease the premises have been sold by the assigmee by order of said probate court, and the distribution of the proceeds awaits the order of this court. Under section 9 (same as section 6351 R. S. ) of the act regulating the mode of administering assignments, the priority of liens is to be determined as the liens existed at the time the assignment took effect. Scott v. Dunn, 26 Ohio St., 63; Kingman v. Boyer, 40 Ohio St. 109;
    Judgment becoming dormant does not lose its priority. Dempsey v. Bush et al., 18 Ohio St., 376.
    The statutory lien of a judgment on the lands of the debtor, limited to a eertan period of time is unaffected by the plaintiff’s delay within that period in proceeding upon it until a subsequent lien has been obtained and carried into execution. It does not lose its priority. Rankin v. Scott, 12 Wheat. 177. Purchaser at execution sale acquires title superior to prior unrecorded mortgage. Stevens v. Texas & Pacific Railway Co., 105 U. S. 703.
    We conclude that priority of lien gives priority of legal right. It must be conceded that Mason’s judgment lien and levy is prior in time and legal effect. Howard v. Milwaukee & St. Paul Railroad Co., 104 U. S. 837.
    The issuing of a fi. fa. instead of a vend. exp. is not a waiver of the previous levy. Bouton v. Lord & Hathway, 10 Ohio St. 453.
    Issuing a general execution instead of an order of sale of attached property, and a sale of said property thereon, is not a toaiver or abandonment of the priority acquired by the attachment. Liebman v. Ashbacker, 36 Ohio St. 94.
    
      Mason having caused an alias execution to be issued within the life of his judgment proves conclusively that he did not intend to either waive or abandon his said lien and former levy.
    
      Harris <& Sears and Finley c& Bennett, for defendants in error,,
    We contend that the following are the propositions of law which govern this case.
    
      First Proposition. — Where a foreign execution is placed in- the hands of a sheriff, directing him to make the amount of it out of -the personal property of the judgment debtor, and in default of personal property, to levy upon and sell the real estate of the judgment debtor, that a levy made by such writ operates as a lien from- the time of the levy, and only continues as such a lien against subsequent mortgage or other bona fide liens, so long as the sheriff pursues the directions of the writ, and follows the provisions of the statute regarding his duties under such writ; and that whenever the judgment creditor interferes with the duties of the sheriff and stops further, proceedings under the levy, by directing the sheriff to proceed no further, and to return the writ without further proceedings or sale, that, that moment said execution levy becomes dormant and fraudulent, in contemplation of law as against a subsequent bona fide mortgage or junior lien of any kind; and such latter named lien takes precedence over the execution levy in a contention between the two conflicting liens; in other words, Mason could not, on the 30th day of November, 1886, direct the sheriff not to make his judgment out of the personal property of the debtor, but to levy the same upon the real estate, and return it without further proceedings, and thereby create an execution lien that would hold good for the next five years, as against all subsequent mortgage or other liennolders in good faith; or as the books put it, an execution levy cannot be converted into a mortgage on the debtors lands. Sections 5375, 5381, and 5383, Revised Statutes.
    It is questionable whether a levy made on real estate under such circumstances, without the return showing “no goods” is valid, so as to make a lien as against contending- lien-holders, but be that as it may, we being neither parties or privies to the judgment and levy,, are not bound by the sheriff’s return, and it is not conclusive as against us; and we claim that the return not being in conformity to law, binds nobody. Root v. R. R. Co., 45 Ohio St., 222; Philips v. Elwell, 14 Ohio St., 240; Hill v. King, 4 Ohio St., 135.
    The sheriff having seized the land with writ, the statute provides what shall be done by him. Section 5388. And to bring about that sale for cash he is to follow section 5389. And the next section, 5390. And when the foregoing is all done, section 5418, is to be observed.
    If the judgment creditor steps in and prevents the officer from obeying the writ, the penalty for his act in doing so is two-fold; (1), he loses his remedy by amercement against the sheriff; and (2), his act makes his lien dormant and postpones it to that of the subsequent judgment or mortgage liens.
    (1) . A judgment lien becomes dormant and lost in five years, because the judgment on which it is based becomes dormant in that time.
    (2) . An execution lien becomes dormant and loses its priority in sixty days, which is the life of the writ upon which it is founded, unless the levy of the writ is followed up by proceedings to sell and realize upon the levy in the mode pointed out by law.
    Section 5386 — It will thus be seen that this alias execution is simply an execution directing the sale of the property levied upon, and held by the first execution; and conforms precisely to the old writ of vendi exponeos, which was a writ for the sale of property seized by writ of fieri facias.
    
    It will also be observed that the law with regard to a levy upon real estate, does not differ from that of personal property, as will be seen from section 5405.
    It will be observed that upon the seizure of lands upon an execution where the land is not sold under that execution, the statute makes no provision for eogain seizing the land with a second or subsequent execution, but all subsequent executions amount to no more than writsof vendi exponas to sell the same.
    
    The land was seized upon the first execution and held for sale. When the alias execution was issued, which the law defines to be an execution to sell the property seized and held by the first execution, what benefit was to be derived from again seizing that property with the alias writ, and returning it back again without further proceedings to sleep like a mortgage lien until some future time ? The only effect that such second seizure or levy could have, we mean the only legal construction that could be given to it, would be that the second levy was an abandonment of the first, and a waiver of it; in which event, if a lien could be acquired at all by a seizure upon an alias execution, which is simply an execution to sell, it certainly would only date from the time of the seizure. Section 5388, Revised Statutes.
    
      It is clear from the forgoing section that the law does not contemplate that the officer may levy this alias writ upon the" property “previously taken in execution1'1 but that the property mentioned, means other property, and the officer making such levy upon other property, is clothed with authority first to determine whether the property already in hands, whether that be real or personal property, is or is not, sufficient to satisfy the writ; and only in the event that in his opinion, it is sufficient, can this alias execution — this vendi exponas — be legally levied upon other property, but in no event can it be levied upon the property of the judgment-debtor already in the hands of the officer. Arnold v. Fullers’ Heirs, 1 Ohio, 458; Gwynne on Sheriffs, page 440.
    Did the act of Mason in interfering with the sheriff postpone his lien to Sturgeon ?
    We think the Supreme Court of Ohio, as well as every other court, where thd question has arisen, have decided in the affirmative; our Supreme Court, putting it upon the ground that it is not only dormant, but fraudulent as to other lien-holders. Acton v. Woodnutt, 14 Ohio St., 18; 11 Wend., 552; 4 Wend., 332; 5 Hill, 377; 6 Hill, 232; 4 Dall., 358; Gwynne on Sheriffs, 212, and cases, cited
    After the sheriff seized the property under Mason’s execution, he could not return nulla bona ; he was bound then to sell. 6 Ohio, 649; 12 Ohio, 237.
    He was thus bound to sell, unless prevented or directed not to do so by the judgment-creditor ; and, if the judgment-creditor so prevented or directed him not to sell, such act of his, as we have shown, makes his lien dormant and fraudulent, as to subsequent lien-holders, and consequently postpones it to theirs.
    We are not without-abundance of authority' on this question, both as to real and. personal property. Black on Judgments vol. Sec. 1, 457; Gold Ins. Co. v. McCrary, 65 Ala., 127; Freeman on Ex. Vol. 1, 587 ; Beeman v. Martin, 54 Ala., 189; 17 Johns., 274; 11 Cowens, 310; 2 Hill, 277; 2 Swan’s Prac. 1028-1038; Loverich v. Louder, Eng. Com. Law, 165; U. S. v. Conyngham, et al., 4 Dall., 358; 59 Miss., 613 Lovick v. Crowder, 8 B. & C. 132; Vol. 7 Ency. of Law, 144; Hickman v. Caldwell, 4 Rawle, (Pa.) 376; Owen v. Patterson, 6 B. Mon., 489; 44 Am. Decs., 780; Freeman on Ex. Sec. 206.
    
      Second Proposition. — The first levy, was made Nov. 30, 1886. The second levy upon the alias writ was made Nov. 7, 1891. Between these two dates, our client Sturgeon obtained his mortgage.
    The decisions in ail of the states, wherever this question has arisen, are all one way. Swetser v. Matson, 153 Ill., 568; Baldwin v. Fredendall, 10 Ill., 106; Earls’ App., 13 Pa., 483; Dunderdale v. Saubestre, 13, Abb. Pr., 116; Stoudsburg Bank's App., 126 Pa., 523; Matthews v. Warne, 11 N. J. L., 350; Kellogg v. Griffin, 17 Johns, 274; Benjamin v. Smith, 12 Wend., 404; Ball v. Shell, 21 Wend., 222; Kimball v. Monger, 2 Hill, 364; Price v. Ships, 16 Barb., 586; Corlies v. Stanbridge, 5 Rawle, 286; Lantz v. Worthington, 4 Pa., 153; U. S. v. Conyngham, 1801, Wall. C. C. 178; State Bank v. Etter, 15 Ark., 258; Alabama Gold L. Ins. Co. v. McCreary, 65 Ala. 127; Bank v. Broughton, 15 Ala., 127; S. C. 27 Am. Dec., 274; Kauffelts App., 9 Watts, 334; Mentz v. Haman, 5 Whart., 150; Loiory v. Coulter, 9 Pa. 349; FreeburgeSs App., 
      40 Pa., 244; Koren v. Roemheld, 6 Ill., App., 275.
    The plaintiff in execution may desire to allow the defendant time in which to make payment, and yet may wish to save himself from all hazards arising from his delay to enforce the collection of his judgment. He is likely therefore, to take out an execution, with a view of binding defendant’s property, but with no intent to make any immediate levy or sale. In other words, he seeks to convert his execution into a mere mortgage. This the law does not tolerate. Whenever it can be shown that the object of the writ was merely to obtain better security for the debt, it is fraudulent as against subsequent purchasers or encumbrancers, and .outranked by subsequent executions. Freeman on Judgments. 31 Ill., 121. 5 Rawle, 286. 40 Pa. St., 244. 3 Watts & S., 285. 2 Pa. St., 231. 16 Barb., 585.
    
      Third Proposition. — We claim that if the levy of Nov. 30, 1886, (proceedings under it having been stopped' by the judgment-creditor Mason), would nevertheless hold good as a lien, that the issue of the alias writ, and the levy of it upon the lands of Michael Charlton, (where no sale was made under it), did not have the effect to prolong and keep alive the prior lien acquired under the levy of Nov. 30, 1886 ; but, that if it could be used to acquire a lien on the lands by levying it upon them, then such lien would date only from the date of the levy under it towit: Nov. 7th, 1891. In other words, you cannot tack the levies together and thereby create a lien, and prolong a lien dating back to the time of the first levy. The last levy either constituted a lien, or it did not; if it constituted a lien, that lien would date from the day of the levy, Nov. -7th, 1891, and would be younger than our mortgage. If it did not constitute a lien, then it did not in any way perpetuate and prolong the life of the first lien, and the property not having been sold under the first levy and lien, and more than five years having elapsed, and the judgment having become dormant, leaving no sale and nothing done under the first levy, other than a mere levy upon the land, it likewise became and was dormant, and ceased to be a lien, especially as against our mortgage.
    
      Fourth Proposition. — Mason caused his first levy to be made Nov. 30, 1886, and ordered the writ to be returned without further proceedings. He allowed that to stand until Nov. 7th, 1891, when he caused a second execution upon the same judgment to be levied upon the same lands, and in like manner required the sheriff to simply make a land levy and return the writ of Nov. 7, 1891, without a sale. Between the time of those two levies, Sturgeon’s mortgage lien attached. We contend that the levy of the second writ upon the property and its return by direction of Mason without a sale, was an abandonment and a waiver by him of the- so-called lien acquired by the first levy, and would therefore operate only as a lien from the date of such last-named levy, towit: Nov. 7, 1891. That the last named writ, having been returned without a sale, and two years having’ elapsed, and no sale ever having been made under it, the second execution, like the first, became dormant. Freeman on Execution, Sec. 202, page 579; Kregelo v. Adams, 9 Biss., 343; 3 Fed. Rep., 628; Sturgis’s Appeal, 86 Pa. St., 413; Brown v. The Sheriff, Mo., 154; Garner v. Willis, Breese, 368; Watrous v. Latrop, 4 Sand., 700; Union Bank v. McClung, 9 Humph., 91; Maul v. Scott, 2 Cranch C. C., 367; Ross v. Alexander, 65 N. C., 577.
   Williams, C. J.

The controversy here relates to the distribution of a fund in the hands of Hull as assignee for the benefit of the creditors of Michael Charlton. The fund is the proceeds of the sale of lands on which, at the time of the assignment, the plaintiff in error, and Sturgeon, the defendant in error, each claim to have had a lien, and not being sufficient to satisfy both, the priority, as between them, is the matter in dispute here. The plaintiff in error recovered a money judgment against the assignor, Michael Charlton, and A. B. Charlton, in the court of common pleas of Wyandot county, on the 17th day of November, 1886, and caused an execution to issue thereon to the sheriff of Crawford county, who, on the 30th day of that month, levied the writ on the lands in question, thqn owned. by Michael Charlton, and made all the necessary entries concerning the writ and levy in his foreign execution docket. The writ was returned by order of plaintiff’s attorney, without further proceedings under it. An execution was also issued on 'the judgment to the sheriff of Columbiana county, and was levied by him on lands there situate, belonging to A. B. Charlton, on the 18th day of November, 1886, and a return thereof made similar to that on the Crawford county execution. A. B. Charlton was surety of Michael Charlton for the debt on which the judgment was rendered.

After the executions were so levied and returned, Michael Charlton executed two mortgages on the Crawford county lands on which the levy had been made, to Sturgeon, as security for a bona fide indebtedness; one of the mortgages was filed for record August 22, 1887, and the other April 7, 1888.

On the 7th day of November, 1891, the plaintiff in error caused another execution to be issued on his judgment recovered in Wyandot county, directed to the sheriff of Crawford county, which was on that day levied on the same lands that were seized on the first writ and returned without sale; and a like proceeding was had with respect to the lands of A. B. Charlton, in Columbiana county.

On this state of facts the court of common pleas gave the judgment lien priority over the mortgages, and directed the distribution of the fund accordingly. The circuit court reversed the judgment.

Under the decision in the case of The Coal Co. v. Bank, ante, 233, the lien of the judgment on the Crawford county lands was a valid and subsisting one when the mortgages were executed and filed for record, and the lien of the latter was subordinate to that of the judgment unless the issuing and levy of the subsequent execution constituted an abandonment of the lien resulting from the levy of the former one; and whether it did or not is one of the questions peculiar to this case.

The object in suing out the last execution was to prevent the judgment from becoming dormant, and to continue its lien on the lands taken on the first writ. There was no other way in which that could be done, except, perhaps, by suit to marshal the liens, and bring the lands to sale. It is suggested that a writ could have been issued directing the sale under the former levy. But the requirement of such a writ to sell is not more imperative than that of the execution which was issued. The course pursued would have been unobjectionable as a method of preserving the lien of the judgment on lands situated in the county where it was recovered. Boughton v. Lord, 10 Ohio St. 453; Liebman v. Ashback, 36 Ohio St., 94. And the statute does not require a different mode where the lands lie in another county. The mortgagee is in no worse position by the continuation of the lien by the method adopted, than he was when his mortgages were made. They were subordinate to the judgment lien when taken, and the security thereby obtained has not been diminished. The judgment was then unsatisfied and is still so; and instead of the issuing and levying of the last execution indicating an intention to waive or abandon the lien created by the levy of the first one, or justifying any inference by the mortgagee to that effect, it afforded unequivocal evidence of the contrary intention. There was, therefore, no waiver or abandonment of the judgment lien; and, as it remained in force when the proceeding was commenced by the assignee to sell the lands, it was entitled to priority over the mortgages.

Another claim made in this case, but apparently not so much relied on, is that, as the judgment was alien on the lands of A. B. Charlton, in Columbiana county, as well as on those of Michael, in Crawford county, while the mortgages were liens only on the latter, the plaintiff in error should be required first to exhaust the Columbiana county land, before resorting to that encumbered by the mortgages. But it is clear the facts do not make a case for the application of the principle that a creditor who has a lien on one fund only, may compel another creditor having a prior lien thereon, and also a lien upon another fund, to. exhaust the latter before resorting to the former fund. That rule applies only where both funds are the property of the common debtor, or person .who ought in equity to pay both creditors ; it has no application where the exclusive fund is the property of a surety for the debt for which that fund is bound. Here, A. B. Charlton was surety for Michael on the debt, the collection of which was sought by the levy of the execution on the lands of theformer. It is his equitable right to have the principal’s property applied to the satisfaction of the debt, to the exoneration of his own ; or, if he should be compelled to pay it , he would be entitled to be subrogated to the rights of the creditor, and enforce the judgment lien against the property of the principal, and to all the benefits of that lien, Which, being superior to Sturgeon’s mortgages, would at last appropriate the fund in question in preference to the mortgages.

The judgment of the cvrcuit cornd must be reversed, and that of the common pleas affirmed.  