
    Willis Banks vs. Richard Evans.
    It seems that a court of chancery has jurisdiction of a hill to have a deed cancelled, which is alleged to constitute a cloud upon the complainant’s title; as where two persons have each purchased the same lands under judgments against the same defendant, and have received deeds respectively thereto, one of them may file a bill to cancel the deed of the other, on the ground that he has the better title; in such case the complainant must, in order to prevail, establish clearly the facts which annul the pdrchase of the defendant; the court will not, upon a doubtful state of case, set aside a legal title.
    Whether an execution which issues on a satisfied judgment is void or only voidable, and whether a sale of lands under it is void, or only voidable, qumre ? Whether void or not, it is certain that the Hen of the judgment is discharged by the payment of the judgment; and a sale under an execution on such paid judgment, if valid at all, cannot relate farther back than the time when the execution went into the hands of the sheriff.
    Where property was sold under several executions, and the sheriff’s deed recited a particular execution, among others, as one under which the sheriff sold; and a purchaser of the same property at marshal’s sale sought, by bill in equity, to have the sheriff’s deed cancelled, and alleged as one ground therefor, that the particular execution recited in the sheriff’s deed, was paid before the sale, and was not in the sheriff’s hands at the time of sale, and the sheriff’s vendee alleged his belief that the execution referred to was in the sheriff’s hands at the time of sale by him, and there was no evidence to support the allegation of the complainant; it was held that the complainant had failed to make out his case, or to impeach the defendant’s title.
    Where property is sold under several executions, if the proceedings in one case be regular the sale will be valid, though all the others be irregular and vicious.
    Where an execution was returned by the sheriff, “ money not made;” but no indulgence on the part of the plaintiff in execution appeared, or negligence in the management of his execution, it was held that the mere omission of the sheriff to do his duty, whereby he made himself liable for the debt to the plaintiff in execution, would not postpone the lien of the plaintiff’s judgment.
    
      It seems that it is not a valid levy of an execution upon personal property, if it is not taken into the possession of the sheriff; where, therefore, a sheriff, having various executions against J., went to J.’s plantation, and saw a quantity of cotton at J.’s gin, supposed to be about seventy-five bales, and was told by J. that he had seventy-five bales 'more in a warehouse at a distant point which the sheriff did not see ; and the sheriff took no part of either lot of cotton into his possession, and never sold either, but J. shipped and sold them; and the sheriff returned that he had levied the executions on this one hundred and fifty bales of cotton ; it was held that the facts did not amount to a levy on the cotton.
    A levy upon sufficient personal property is not an actual, but only a prima facie satisfaction of the judgment; if legally removed, or removed without the intervention or act of the plaintiff in the execution, it is not a satisfaction. It seems a levy on personal property is never deemed a payment, except in those cases where, if it were not, the defendant would be twice deprived of his property on the same judgment.
    The general authority of an attorney at law, as such, does not extend so far as to enable him to release property levied on, under execution; and it seems, therefore, that if an attorney at law release a levy upon personal property, such levy and release will not be a satisfaction of the judgment, nor a postponement of its lien.
    This was a case depending upon the fact, whether a particular judgment, under which the property in controversy was sold, was paid before sale; if paid before sale the purchaser’s title would have been inferior to that of the claimant; the facts are reviewed, and the conclusion reached, that the execution was not paid before the sale; yet, inasmuch as the facts were complicated, and the record not as perspicuous as it might have been, the claim of the defeated party was dismissed without prejudice to any rights which he might afterwards wish to assert. ,
    The title of a purchaser at sheriff’s sale cannot be affected by the return of the sheriff, made subsequent to the sheriff’s deed to the purchaser.,
    The doctrine that, where there is a misapplication of money made on executions by the sheriff, the judgment, which is entitled to the money, is satisfied thereby, must be limited to the case where all the executions have leen levied on the property sold, and the sale has taken place under all; it has no application to executions not actually levied.
    
    It seems that where a sheriff has several executions of fieri facias in his hands, a levy of one is not a levy of all. He may levy some on personalty, some on realty, and not levy others at all.
    On appeal from the vice-chancery court at Columbus ; Hon. Henry Dickinson, vice-chancellor.
    
      .On the 18th of May, 1842, Richard Evans filed his bill in the district chancery court, against Willis Banks, stating, that at the June term, 1839, of the United States district court, held at Pontotoc, Andrew Armstrong, who sued for the use of Prince and Garrett, recovered a judgment for $2875.93, besides costs of suit, against John H. Irby, George M. Mullin, Richard Evans, John S. Chandler, Francis W. Irby, Henry Barrow and Daniel W. Jordan; an execution on it was levied upon negroes, and a forthcoming bond executed by all the defendants, except Richard Evans, which was forfeited on the second Monday of November, A. D. 1839. On this bond a fieri facias issued, and was levied on the 15th of April, 1840, on the land in controversy, which was purchased by Richard Barry; on 14th September, 1840, Barry deeded the land to complainant. On 15th June, 1840, the sheriff of Lowndes county sold said land to Willis Banks of Alabama, under two executions, one against Daniel W. Jordan, in favor of Benjamin Clarke, and one against said Jordan, Francis W. Irby, and John S. Chandler, in favor of Edward Sims, and gave a deed therefor to Banks. That by virtue of this deed said Banks claims paramount title to said land, and threatened to bring suit, but does not do so. Complainant being in possession, cannot have an action at law to try the title.
    The bill denies that the sheriff held any execution in favor of Clarke against Jordan; states that no judgment was rendered to warrant such an execution; and that, though an execution did erroneously issue, it was returned satisfied. That said execution was on a proceeding of habeas corpus brought by Clarke against Jordan, and which terminated, in fact, against Clarke ; Jordan being ordered to pay costs of entering proceedings, estimated at about $1.50. That more than twelve months had elapsed since the rendition of this judgment, and it ought to have been revived by a scire facias; at least, it had lost its priority. That the execution in favor of Sims is pretended to be based on a forthcoming bond, forfeited 1st July, 1839; prior to the forfeiture of the bond under which complainant claims. That, admitting this to be true, the right of priority was lost by the laches of plaintiff. That an execution issued on said forfeited bond, from October term, 1839, of the circuit court of Lowndes county, returnable at the April term, 1840, of said court, and that under this execution, and others then in the hands of the sheriff, personal property of Jordan was levied on of more than double the amount of all executions then in the hands of the sheriff. That a part of the negroes then levied on, and more than sufficient to satisfy Sims’s execution, still remain unsold. That in favor of this execution other large levies were made on the property of Jordan, and Jordan, under cover of them, was pérmitted to move a part of this property out of the state in fraud of prior judgments. That on the 6th March, 1840, the said execution of Sims was levied on nine negroes of Francis W. Irby, a co-defendant with Jordan. That by the directions of the attorney of said Banks, the sheriff permitted said Irby to convey his negroes into Alabama. That in February, 1840, said execution, with others, was levied on a large quantity of baled cotton, the property of Francis W. Irby, which was sold and bid off by the attorney of Banks, which was never paid for, nor any credit given on said execution, nor any other against Irby. That said cotton was conveyed out of the state under cover of said sale, and was more than three times enough to pay the amount due on said execution, mentioned in the deed of sale to Banks. That notwithstanding these levies said execution was returned unsatisfied. All which appears by the levy book kept by the sheriff.
    The bill further avers, that after this another levy was made under this execution on personal property of the defendants thereto, more than three times enough made to satisfy the execution, which was permitted by Banks to be appropriated to executions to which it did not belong, except three or four hundred dollars which was paid into court, to be by it appropriated, and which remained still to be appropriated. The bill sets out the various levies made, and avers that they would be sufficient to satisfy the various executions under which they were made, and prays the deed of Banks may be cancelled.
    The record of the suit of Andrew Armstrong, suing for the use of Prince and Garrett against the parties named in the bill, is filed but need not be further noticed. The deed from the marshal to Barry, and the one from Barry to Evans are also-filed as exhibits. Banks’s answer admitted the purchase by Barry and the sale to Evans, but denied that the levy by the sheriff was under the two executions only mentioned in the bill, but avers that it was made by virtue of several other executions, transcripts of which are filed as exhibits to the answer issuing on judgments, averred to be older than the executions under which complainant purchased. The answer avers that the purchase under the executions at sheriff’s sale was bona fide, the defendant believing the only question to be, whether junior judgments by prior executions and sale, could divert the lien, of prior judgments, which was then an open question. The defendant denies all knowledge of any payment of the execution in Sims’s favor when he purchased, or any knowledge of Clark’s execution, or any knowledge of the levies by the sheriff, under said execution of Sims, mentioned in the bill, and denies all connivance or fraud on his part in relation thereto, &c.
    The executions referred to as ex-hibits to this answer, are those, 1. of Audley H. Gazzam against John H. Irby, Daniel W. Jordan and Lavender S. Wilkins, rendered April 9th, 1839; bond forfeited November 1, 1839, for $336.93. This execution is not further noticed for the reason given by the court. 2. Joseph B. Varnum against Daniel W. Jordan and Joseph W. Carroll, rendered April 9th, 1839, for $157.89; bond given and forfeited; on which an execution issued, and was levied on some stock and other personal property, which the sheriff returned not sold for want of time; a venditioni exponas issued, and was returned satisfied in full from sale of the property levied on ; afterwards on the 4th of April, 1840, an alias fi. fa. issued, and. was returned levied on the land in controversy, being two hundred and forty acres, which was sold to Banks, and the proceeds appropriated to other fi.fas-.; “this one being satisfied under the sale on the venditioni exponas.” 3. Edward Sims against Daniel W. Jordan and Francis W. Irby; judgment on the 13th of April, 1839, for $970.50; bond forfeited, on which an execution issued, and was returned “ money not made ; ” on the 27th of April, 1840 ; an alias issued, which was numbered No. 208G, which was returned levied on the land in controversy in this case, which was sold 15th June, 1840, to Banks at five dollars per acre, by which the execution was satisfied in full.
    The complainant filed as proof the proceedings had in the case of Osborn D. Herndon et al. Trustees of Aberdeen against Daniel W. Jordan ; judgment 13th April, 1839, for $404.20, and costs ; execution issued 27th May, 1839, and levied on a negro; bond taken with Richard Evans as security, and forfeited, and execution had thereon, which was levied on certain negroes, who were sold for $1398.
    Also the proceedings had in the same court in the case of Moses Westbrook against Daniel W. Jordan; judgment 9th April, 1839, for $93.60, and costs ; execution issued 30th May, 1S39, and levied on two mules; bond was taken, with Richard Evans as security, and forfeited; an execution had thereon 20th November, and returned satisfied in full.
    Also the proceedings in Waldron, Thomas & Co. against Daniel W. Jordan; judgment 9th October, 1838, for $388.09 and costs; execution on a forfeited bond issued 4th December, 1839, and is returned as levied with other executions, on the same negroes returned as sold under the execution of Osborn D. Herndon et al. against Daniel W. Jordan. On the back of thisfa. is an acknowledgment by plaintiff’s attorney of the reception of $411.25.
    Also the proceedings in Tombigbee Railroad Company against Daniel W. Jordan, Richard Evans and John H. Irby; judgment 17th December, 1839, for $1053.78 and costs; execution issued 7th February, 1840, and levied on personal property (with other ji. fas.) too late to sell.
    Everard Downing, jun., for complainant, states that Pryor M. Grant was sheriff of Lowndes county in 1840, and witness was his deputy; said sheriff kept a levy book to record the dates of levies; that executions were levied according to their priorities; in February, 1840, there was in the office of the sheriff an execution in favor of Edward Sims against Daniel W. Jordan et al., and also other executions in favor of said Sims against F. H. Irby, J. H. Irby and D. W. Jordan; that by virtue of these executions, (and perhaps others against Jordan alone) witness in February, 1840, levied on about seventy bales of cotton, which he saw; and Jordan informed him of seventy-five other bales which were in a warehouse at Plymouth, to be included in the same levy, but which witness did not see ; he thinks that said cotton was never sold, as he and Mr. Ottley generally acted as auctioneers to said sheriff.
    Oats Carroway, for complainant, deposed that he knew the land in controversy between Evans and Banks ; it was formerly owned by Daniel W. Jordan; Banks purchased it at sheriff’s sale; a few days prior to the sale, Banks stated to this deponent that he (Banks) had consulted William Harris as to the title of the land, and had been informed by him that Evans’s title was bad, and that a good title might be obtained by purchasing at the sheriff’s sale, and if there arose any litigation about it, he (Harris) would attend to the business free of charge; and that Harris had shown to him a decision of chief justice Marshall, which was recognized as law; that Banks, a few days before the sale took place, declared that, although he was not known in the execution under which the land was sold, he was directly interested in it, and that a portion of the money was coming to him, and that he would have to pay but little money for the land; and on the morning of the day on which the sale took place, Banks again said he had consulted Harris, who informed him to buy if he wanted and he would get a good title; that Banks said the execution in which he was interested was that in favor of Edward Sims.
    Abner Bell deposes in substance the same as Carroway, and adds that he at the time of sale was in possession of said land, and Banks asked him if he would give him possession if he bought the land; promising him if he would he might finish the crop, as he did not want to commence suit against Evans, but wanted Evans to begin suit.
    Adolphus G. Weir deposed, that as marshal of the northern district, he sold the land in controversy as stated in the pleadings, and also some negroes, by virtue of the execution in Armstrong, use, &c. against John H. Irby et al.; that said executions were issued against Richard Evans, which was an error, as Evans did not sign the forthcoming bond ; that the defendants had no other property on which a levy could be made; Evans did not procure the levy to be made on the land in controversy.
    John H. Irby deposed that the negroes sold by the marshal were his negroes, and that they were purchased by Richard Evans for Prince and Garrett; these negroes were sold by Evans to different persons in and around Lowndes county ; no means had been used to conceal them from observation.
    Francis W. Irby states that he is a defendant in the judgment rendered in favor of Edward Sim's against F. W. Irby, Daniel W. Jordan and John S. Chandler; and also in a judgment rendered in the same court in favor of said Sims against D. W. Jordan, F. W. Irby and J. S. Chandler. That in January or February, 1840, a levy was made on a portion of witness’s cotton crop, which was sold soon after under the executions on said judgment; that between the levy and Sale, William L. Harris and witness agreed that Harris should buy the cotton, ship and sell it, and credit the amount it would bring at Mobile on said executions; that Harris afterwards stated to witness, that he had drawn on Toomer, Gray & Co., Mobile, for $1000 in favor of Sims, to be applied to the execution in his favor against witness, D. W. Jordan and John S. Chandler; the amount levied on was seventy-six bales, and the proceeds thereon at Mobile $1995, at 6| cents per pound. That he was defendant in a judgment in' the same court in favor of Martin T. Collier, the original judgment being for $3209.48 — the forthcoming bond being forfeited 4th March, 1839; $775 were paid to William L. Harris, attorney for plaintiff, in said judgment in August, 1839. That after April, 1840, the sheriff sold of witness’s property to the amount of $1975, at the same time of John S. Chandler’s, to the amount of $550 or $600; on the same day there was a sale of property of Jordan.
    
      Stephen B. Hoit states that he resided with D. W. Jordan, as overseer, in 1839, and till April, 1840. That Jordan produced, in 1839, one hundred and fifty-nine bales of cotton, averaging four hundred and fifty pounds each. That eight of Jordan’s negroes were carried off by the sheriff to Columbus, perhaps in March or April, 1840. Some three or four were carried by Jordan to North Carolina; Jordan left Mississippi in April, 1840, during the term of court. His property was carried oif Sunday night previous to the commencement of court. Jordan left privately, and carried, when he left, twenty-two negroes; the crop of 1839, was shipped by him to Mobile, Alabama. The three- negroes which were levied on, but carried by Jordan to North Carolina, were worth $800 each.
    Joseph P. Waddel states that he was deputy sheriff from November, 1839, to November, 1840; was clerk in the office, and kept the books; Grant was sheriff. He held, in the early part of 1840, an execution in favor of Edward Sims against Daniel W. Jordan, Francis W. Irby, and J. S. Chandler; and another execution in favor of Sims against said Jordan, Irby, and Chandler; and one in favor of Martin T. Collier against Francis W. and John H. Irby, and John S. Chandler and Thomas Wilson. The cotton of Francis W. Irby was sold March 3, 1840, to George R. Clayton. A written iustrument was given by Messrs. Harris and Clayton, on the 26th of March, 1840, addressed to sheriff Grant, in which Harris and Clayton say, that, so far as they are concerned, they have no objection to Irby’s taking the negroes he now has, with him into Alabama, and selling them. Harris and Clayton -were attorneys, in the cases mentioned, for the plaintiffs, and had control of the executions.
    Thomas Christian states that he was a deputy sheriff, and that certain levies were made on the property of Jordan, Irhy, and Chandler, for which he refers to the sheriff’s levy book, and says he has no personal knowledge thereof.
    William L. Harris states that he is counsel for the defendant in this cause; that he had a casual conversation with defendant a few days previous to defendant’s purchase of the land in controversy; that the complainant’s title to the land in dispute was alluded to as having been acquired under a judgment junior to outstanding judgments, a point which deponent was at the time examining in another case, and on which he had not yet formed his opinion. That at the October term, 1842, of the Lowndes circuit court, a motion was made by deponent to obtain leave for the sheriff, Grant, to amend his returns in the cases of Gazzam against Irby et al., Yarnum against Jordan et al., and Sims against Jordan et al. Witness learned from Grant that the land in dispute had been levied on and sold under some or all of the executions in said cases; that the amendments were made on the day that leave was obtained, or on the morning following; that the returns were in a confused state, and Grant requested witness to make the motion. He drew up the answer in this case. Witness does not know that Banks’s purchase was the consequence of consultation with any one. At the time of the purchase witness and George R. Clayton were partners, and had been for years; they were retained by Edward Sims some time after the commencement of the suit of Sims against Jordan et al. to assist Messrs. Bingham and Saunders in the management thereof. That Clayton and Harris had no control over the judgment in said case, as they were not the attorneys of record. Witness was Jordan’s attorney in Clarke against Jordan. Did not know till long after Banks’s purchase, that execution had issued in that case; he did not think it was properly in sheriff’s hands at time of sale of said land. About the 26th of March, 1840, Francis W. Irby came to witness, and said he had some five negroes which he desired to take to Alabama, without being molested or maligned as to his motives. Witness understood that said negroes were not then levied on, and that they would be sold in Alabama, and the proceeds applied to some executions which witness had; and if not sold would be returned to this state. Witness addressed the note spoken of to Grant. Two of said negroes were subsequently brought back, levied on and sold by the sheriff. George R. Clayton bid off the cotton of Francis W. Irby. Previous to said sale, said Irby came to witness and Clayton, and expressed apprehensions that his cotton would be sacrificed, and desired it to be purchased and sent to Mobile, and he be allowed the benefit of this arrangenrent in payment of the executions over which witness and Clayton had control. The cotton was purchased and, with other cotton added by Irby, the whole raised at Mobile the net sum of <$1997.97; f1000 was appropriated to Sims’s claim, and the balance to Martin Collier’s claim. Harris and Clayton were said Collier’s attorneys. Witness could not tell from memory what sums were paid on Collier’s claim. A note on A. J. Semmes, was transferred by F. W. Irby, to be applied in satisfaction of that claim, but the amount of said note not recollected. Witness has no recollection of any agreement between himself and F. W. Irby, except the one made in reference to the cotton. He knows nothing of any levies made in favor of Collier’s claim, except such as appear on the executions. He knows of no payment made on the judgment of Sims against Irby et al., before the April term, 1840, of the Lowndes circuit court. There were three cases in favor of Edward Sims, viz.: against J. H. and F. W. Irby and Jordan, on bond forfeited 1st July, 1839, for $1936.16 ; against F. W. Irby,. D. W. Jordan, and J. S. Chandler, on bond forfeited 1st July, 1839, for $970.58; against D. W. Jordan, F. W. Irby, and J. S. Chandler, on bond forfeited 1st July, 1839, for $970.58. He knows nothing of the payment of $823 on the execution in Collier against F. W. Irby et al., and he is under the impression that the “balance” returned on said execution as brought into court, had been applied for, though he did not know by whom. J. H. Irby was principal in Sims against J. H. Irby et al., and also in Tombigbee Railroad Company against D. W. Jordan et al. In answer to an interrogatory, as to how Banks accounted to the sheriff, P. M. Grant, for his bid on the land, witness says, that Harris and Clayton receipted to the sheriff, on the undertaking of Banks to pay Sims, who was his brother-in-law, when he arrived at Tuscaloosa, Ala., where both resided, that Banks paid nothing to the sheriff, but agreed to pay Sims; that Sims died not long after, and Banks became his executor. In answer to cross-interrogatories, he says he was not aware, nor was Banks aware, at the time of the purchase of said land by Banks, that it was pretended by any body that the judgments, under which the land was sold by the sheriff, were satisfied ; he was assured, from his knowledge of the parties and his entire acquaintance with the business, that Banks had no interest in the suits on which Sims obtained judgment.
    Sterling Lester states, that in 1842, prior to October term, 1842, of Lowndes county circuit court, Pryor M. Grant, sheriff, came to the office of the clerk of said court and altered his return on the execution in Sims against Jordan et al., which was returnable to April term, 1840. The erased return purported, simply, said execution to have been satisfied in full, 5th October, 1840. The substituted return purported said execution to have been levied on the land, the title to which is litigated by these parties, and the same to have been sold to Banks, and also on a negro woman. Grant stated to defendant, that he had made his return more full and explicit. Defendant says, he refused to permit said Grant to "amend any more returns without an order of court, and that in October term, 1840, of said court, Grant obtained leave of court to amend his returns in Gazzam against J. H. Irby et ah, Varnum against Jordan et ah, and Sims against Jordan et ah It is not deemed requisite to notice the exceptions filed to these depositions.
    There was submitted to the vice-chancellor, as evidence, a bill filed by John Chandler, in the superior court of chancery, against Edward Sims and others; it states, that Sims had obtained several judgments in Lowndes circuit court, against D. W. Jordan, J. H. Irby and F. W. Irby, that complainant was security on the forthcoming bonds given by the defendants, which bonds were forfeited, and thereupon a negro of complainant was levied on and sold. The bill prays that the proceeds be not applied to the executions on those bonds, but be paid to complainant. Because the sheriff had levied on negroes of D. W. Jordan, one of the defendants, sufficient in value to pay all the executions on which complainant was liable; but by directions of Sims’s attorneys, the executions were returned unsatisfied, and Jordan permitted to abscond with his negroes from the state. The bill for this states, that F. W. Irby, another of the defendants, had slaves more than enough to satisfy said executions ; but by permission of Sims’s attorneys, said Irby was allowed to transport his slaves out of the state, by reason of which the executions against said Irby were returned unsatisfied. An injunction was granted, enjoining the sheriff from levying on complainant’s property, and from paying the proceeds of the sale of said negro, in the bill mentioned, to the satisfaction of said executions. The subpoena was never served on Sims.
    There were filed, also, the proceedings had in the case of Martin T. Collier, John H. Irby et al., and John S. Chandler against Francis W. Irby; judgment 9th October, 1838, for $3,081.44 damages and costs; execution issued 11th December, 1838; levied on nine negroes, bond taken with Thomas Wilson as security, and forfeited; execution had thereon 16th May, 1839; levied on eleven negroes as the property of F. W. Irby; proceedings stayed by an injunction and supersedeas, on the 20th August, 1839; on 15th February, 1840, an alias issued and was returned, “ not made,” and appended to said return is the note referred to in the deposition of Harris Waddel. Indorsed on said fi. fa. is a receipt by Clayton and Harris for $775, August 26, 1839 ; a pluries issued 24th April, 1840; levied on property which was sold to the amount of $1,994.41; paid $823 to plaintiff, balance brought into court. Other indorsements show a payment 20th May, 1840, $997.97; June 30, 1840, $829; 1st October, 1840, $126 ; proceeds of A. J. Semmes’s note. An execution issued 26th June, 1841, to the sheriff of Choctaw county, who levied on land and made $256.00. Also in the case of Edward Sims against John H. Irby and Francis W. Irby, which is numbered 2084; judgment 13th April, 1839, for $1,936.16 damages and costs; execution issued May 24th, 1839; bond taken with J. S. Chandler, as security, forfeited; execution issued thereon, 1st November, 1839, and indorsed “ Returned by order of plaintiff’s attorney, April 13th, 1840, P. M. Grant.” On 8th June, 1840, fi. fa. issued and levied, with other fi. fas. on property, to the amount of $1,994.21. Also in the case of Edward Sims against Francis W. Irby and Daniel W. Jordan, numbered 2085; judgment 13th April, 1839, for $970.58, and costs; execution issued 24th May, 1839; bond taken with J. S. Chandler as security, forfeited and execution had thereon, 1st November, 1839; returned “ money not made, 1st April, 1840.” An alias issued 27th April, 1840; returned “levied, with other fi. fas. on property to the amount of $1,994.21, and on other property.” Indorsed 'on this fi. fa. is a receipt by Harris and Clayton for $1000.
    On the 8th of November, 1844, a decree was rendered by the vice-chancellor upon the pleadings and proof, declaring Banks’s title to be null, by reason of the satisfaction and extinguishment of the judgments under which he had purchased; and Banks appealed.
    
      W. Yerger, for appellant,
    contended,
    1. That it was clear, from the evidence, that the judgments under which Banks claimed had not been satisfied when the sale to him took place. Mr. Yerger reviewed and commented on the testimony on this point at length.
    2. That the levy on the cotton which was left with the defendant was not a satisfaction in law of the judgment; the rule that a levy was a satisfaction, was for the benefit of defendant to prevent excessive levies; and if property levied on was returned into his possession, or died or escaped, the defendant was liable to a new levy. He cited Morrow v. Haris Administrator, 1 Marsh. 292; Burford v. Alston, 4 Dev. R. 351; In the matter of King, 2 Dev. 341; 4 Dallas, 358; 1 Salk. 322; 2 Modern R. 214; Walker v. McDowell, 4 S. & M. 135; 2 S. & M. 428.
    3. The seventy-five bales of cotton, not seen by the deputy, said to be in the warehouse, never was levied on in contemplation of law. 3 Wend. R. 446; 14 Wend. R. 123; 16 Johns. R. 288. It was proved by Hart to have been shipped and sold by Jordan himself.
    4. That the negroes spoken of as having been sold by the witnesses Irby, were sold under the judgments of Herndon et al., Waldron, Thomas & Co., &c., and not under the Sims judgment.
    
      5. It is objected to the title of Banks, that the money made by the sales of the other judgments should have been applied to the judgment of Sims ; a sufficient answer to protect the title of Banks would be, it was not so applied; but
    6. It ought not to have been so applied; money arising from the sales of property should be applied to the fi. fas, under which it was sold. 6 How. (Mi.) R. 536.
    7. The statements of the witnesses made from the levy books, of levies, &c., was illegal, and ought to have been excluded; they were mere unofficial private memoranda, and not required by law, and copies of them would not be evidence. 1 Phil. Ev. 410; lb. 458; lb. 220, 221; 8 East, 279; 1 Phil. Ev. Cow. & Hill’s notes, n. 425 ; 2 lb. 674, n. 489; 2 lb. 1088, n. 741, 742. The witness did not himself make the memorandum. 2 Phil. Cow. & Hill’s notes, 1278, n. 870.
    8. The allowance by Harris & Clayton to Irby to remove a portion of his negroes, does not affect the lien of Sims’s judgment; Jordan’s property was also bound; aman having two securities may release one of them. Woods v. Terry..
    
    9. Irby was but an indorser. Jordan’s property was first liable, and the removal therefore of Irby’s slaves could not affect Sims’s lien on Jordan’s property. Plow. & Hutch. 596, §§ 38, 42.
    10. Even if the judgments under which Banks purchased were paid, he was ignorant of it, a bona fide purchaser without notice, and will be protected. 1 Cowen, 622.
    11. Notice is attempted tó be established by the bill filed by Chandler, which is set up as a Us pendens ; Us pendens is only notice from the day of service of subpoena ; here there was no service. 1 Wend. 478 ; 7 Mon. 116; 15 John. 315; 2 Mason C. C. Rep. 531; 1 John. Ch. R. 576; 2 Sug. Vend. 324.
    12. Lis pendens is only notice to purchasers from the defendant in the suit of the property named in the suit. 3 Atk. 397; 4 Cow. 667; 1 McCord’s Ch. R. 264; Sug. Vend. 327.
    
      jEvans, for appellee,
    contended,
    1. That though the'oldest judgment, levied last,, prevailed-over a junior judgment with a prior levy, as decided in Andrews v. Wilkes, 6 How. 554, yet the lien of the older judgment might be lost or postponed to the younger by the act of the party. Michie v. Planters Bank. 4 How. (Mi.) 130; Robinson v. Green, 6 Ibid. 228; Russell v. Gibbs, 5 Cow. 390. All the judgments under which Banks claims, are obnoxious to the principles adjudged in these cases to postpone the liens of older to junior judgments.
    2. Banks claims under the judgments in favor of Gazzam, Yarnum, Clark and Sims; the execution on the Gazzam judgment issued on the 20th of June, 1840, five days after the land was sold ; it could not, therefore, have been sold under that.
    3. The Yarnum execution was extinguished by the sale of the 18th of May, 1840, of the personal property, and of the levy thereon, to the April term, 1840. The levy was a satisfaction independent of the sale. 12 John. Rep. 207 : 4 Mass. 203; Head v. Beattie, 5 How. (Mi.) R. 483; Ibid. 629 ; 4 S. & M. 118.
    4. The bill alleges that the Clark execution was satisfied to April term, 1840; Banks has not set it out in his answer, but Harris, his attorney, admits it was not properly in the sheriff’s hands at the time of sale, and thus abandons all claim under it. Thus the only execution under which Banks claims title to the property, is the Sims judgment.
    5. The sale of land under such a “batch of executions” as that under which Banks claims, is in itself a fraud, and should be declared null: it was perverting the object of execution sale, and thus rendering it illegal. McDonald v. Neilson, 2 Cow. 183 j Carlisle v. Carlisle, 7 J. J. Mar. 624; Woods v. Monell, 1 John. Ch. R. 505.
    6. The Sims judgment had lost its lien by indulgence. Mr. Evans reviewed the testimony on this point, and commented at length on the sheriff’s return, “ money not made," which he insisted was adopted by Sims, because he'failed to prosecute the sheriff for his laches, and cited How. & Hutch. 625 ; Ibid. 298, § 29.
    7. Its lien was lost by gross negligence and fraud actually committed in the sham sale of the seventy-six bales of cotton; in the permission by the attorney of Sims to remove the slaves of Irby from the state; in the failure by the sheriff to sell slaves levied on.
    8. It had also lost its lien by reason of levies on personal property to an amount sufficient to pay it. The records of the judgments and executions were reviewed, and the following authorities cited to establish this point: 4 Cowen, 417; 7 Ibid. 13; 4 Mass. 403; 7 John. 428; 6 Wend. 526; 5 How. 483, 629. Evans, when he bought, knew the debts were thus extinguished. Admit that Banks did not know it, shall his ignorance prevail over Evans’s knowledge? Which in equity occupies the best ground ? See Jackson v. Caldwell, 1 Cow. 640.
    9. The doctrine that a sale under a paid judgment to a bona fide purchaser, passes a title which cannot be questioned by the defendant, is not well settled. See 3 How. 68; Saunders v. Caldwell, 1 Cow. 622.
    10. The judgment of Sims was paid before the sale of the land to Banks. On this point, Mr. Evans referred to the various judgments, executions, sales, credits and returns, and insisted, in an elaborate review and calculation, that they showed the satisfaction of the judgment previous to the April term, 1840, as well as subsequent thereto, and both prior to the sale of the land to Banks.
    11. Banks is not a bona fide purchaser; he bought with full notice of Evans’s title, and is thus guilty of constructive fraud, and his own title will be postponed. 1 Sto. Eq. 383, § 395 ; Ibid. 388; Newl. on Contracts, 511; Taylor v. Baker, 5 Price, 306 ; Allen v. Anthony, 1 Meriv. 282.
    12. Harris, the attorney of Sims, had noticed, and advised and consulted with Banks, with reference to his purchase; and thus Banks, through him, had notice. 1 Sto. Eq. 395, § 408; Sug. Tend. Ch. 17; Toidmin v. Steere, 3 Meriv. 209; Brother-ton v. Hatt, 2 Yer. 574; 2 Pow. on Mort. 585, 583, 584, n. e.
    
    13. The bill of injunction of Chandler, was notice to Banks; that bill enjoined the Sims judgment, and thus Banks had notice of it. It was a Ms pendens.
    
    
      14. Banks had notice, because he was interested in the Sims judgment; he was a secret plaintiff; he said he was interested in the judgment; he paid nothing for the land.
    15. To make a bona fide purchaser, without notice, he must deny notice before the money is paid. Here no money is paid yet. Story v. Lord Windsor, 2 Atk. 630; 1 Ch. Cases, 34; Wigg v. Wigg, 1 Atk. 382.
    
      Baine, on same side,
    contended,
    1. That the judgments under which Banks bought were paid, and collated and compared the testimony to prove it.
    2. That the record showed levies on a large amount of personal property not disposed of and not accounted for; and he insisted that the judgments were thereby satisfied ; and that the judgment being satisfied, the lien of the judgment was thereby removed ; and if the satisfaction should afterwards prove not to be real, the lien should only revive from the time the judgment obtained its original vigor. The satisfaction of a judgment should always extinguish the lien of it.
    3. Sims’s judgment was older than some of the others; the money arising from the sales ought to have been appropriated to his judgment; if the sheriff chose to. misapply it, and Sims acquiesced in the misapplication by failing to pursue the sheriff, the consequences must fall on Sims ; his laches in pursuing his rights cannot in justice affect Evans’s claim.
    4. The return of the slaves levied on to the defendant was a fraud on the rights of Evans. That the attorney had power to release the levy, see Jackson v. Anderson, 4 Wend. R. 474.
    5. The levy of the execution on the land sold to Banks was absolutely void; the sheriff had no execution in his hands when it was ma.de; he did not go on the lands or in view of them. ,It was a fictitious levy, and no title passed. Lehr'v. Rogers, 3 S. & M. 468.
    6. Banks was interested in the execution under which he purchased. This was notice. Jackson v. Caldwell, 1 Cowen, 622, 640.
    
      
      Potter, on same side.
    1. The alleged judgment of Clarke against Jordan, will not sustain the title of Banks. There was a mere order against Jordan to pay costs of an habeas corpus proceeding, and this was nót a lien. The costs were paid before the sale, and there was at that date no such execution in the hands of the sheriff. Such is alleged in the bill, and tacitly admitted in the answer. Under the allegations, Banks was bound to produce the record, and show its sufficiency.
    2. The Varnum judgment was satisfied before the sale of the land to Banks.
    3. The judgment of Sims against Jordan, P. W. Irby and Chandler, does not support the title of Banks. The'erased entry of “satisfied,” is the true entry upon the execution, and there is no proof of a levy or sale of the land under this judgment. The first entry of a sale of the land was made by a deputy after the sale, and it was erased by the sheriff before return of the writ. The second entry of a sale of the land was made after return of the writ, without authority, without notice to Evans, and was null. Emerson v. TJpion, 9 Pick. 167; 13 Ohio, 221; Mann v. Nichols, 1 S. & M. 257.
    4. The judgment of Gazzam cannot avail Banks, for the execution was issued after the land was sold, and after the execution of his deed by the sheriff.
    5. The several judgments were paid before the sale of the land, and the subsequent sale was void, especially as Banks is not a bona fide purchaser. Pie has paid nothing, and was interested in the Sims judgment. Hammatt v. Wyman, 9 Mass. 142; 15 Johns. 446; Wood v. Colvin, 2 Hill (N. Y.) 566; Deyo v. Van Valkenburg, 5 Hill, 246; Cameron v. Irwin, lb. 272; Kins: v. Goodtoin, 16 Mass. 63; Freeman v. Huston, 4 Dali. 214.
    6. It is no answer to say that the proceeds of sales Were not applied to these judgments; for the creditor must look to that and the judgment is satisfied, even though there be a misapplication by the sheriff. Finney v. Commonwealth, 1 Pa. 240; Planters Bank v. Spencer, 3 S. & M. 313; 1 Rawle, 33.
    
      7. Nor is it any answer to say these executions were not levied, for they were in the hands of the sheriff at the date of the levies, and in such case a levy under one execution is a levy upon all. Van Winkle v. Udall, 1 Hill, (N. Y.) 560; Collins v. Yemens, 37 Eng. Com. Law, 175; Cresson v. Stout, 17 Johns. 116. Under this rule, the property sold prior to April term, 1840, was levied on under all the executions, for they were in the hands of the sheriff at the date of the levy.
    8. Banks is not a bona fide purchaser; he knew Evans had a claim, and was bound to inquire into the proceedings under the executions. Jackson v. Caldwell, 1 Cow. 622. He was part owner of the Sims judgments, and so was affected with notice.
    9. The judgments were satisfied by the levies. A levy un-disposed of is satisfaction, and the second execution cannot issue. McGehee v. Handley, 5 How. 629. “ Whilst the levy continues the plaintiff’s recourse against the defendant is at an end.” Such levy is satisfaction; a payment which may be set off as such. Kershaw v. Merchants Bank, 7 How. 393. “ After a sufficient levy the plaintiff cannot have a new execution, but must pursue the first levy until it is disposed of.” Pickens v. Marlow, 2 S. & M. 434. If there are two executions for the same debt, a levy and sale under one extinguishes the other. Planters Bank v. Spencer, 3 S. So M. 313. A levy is satisfaction until shown to be disposed of. 4 S. & M. 134; Case v. Adams, 3 How. 223. By second levy, the first not being disposed of, the sheriff is a trespasser. Hoyt v. Hudson, 12 Johns. 207. Whilst the levy is undisposed of, a second writ is void. Arnold v. Fuller, 1 Ham. 458.
    10. I admit that when the property is restored to the defendant, he cannot insist that the judgment was satisfied by the levy, but he may insist upon the levy, whilst it continues, as an entire satisfaction. As to third parties, a levy is satisfaction. Duncan v. Harris, 17 S. & R. 436; Ex parte Lawrence, 4 Cow. 417; Hunt v. Breading, 12 S. & R. 37; Ford v. Geauga County, 7 Ohio, 482; Wood v. Torrey, 6 Wend. 562; Jackson v. Benedict, 13 Johns. 534.
    11. If the prior payments or levies did not render the subsequent executions void, and the sale of Banks null, still the liens of the judgments were destroyed by such payment and levy, and Evans thus purchased under the oldest lien. Payment raises the lien. Jackson v. Caldwell, 1 Cow. 640. Upon levy made, the lien ceases. Ex parte Lawrence, 4 Cow. 418; Jackson v. Bowen, 7 Cow. 21.
    12. The entries on levy book were evidence of levies; the sheriff was required by law so to note his levies. H. & H. 655, $ 82.
    This cause was argued and submitted at the January term, 1847, when Mr. Justice Clayton delivered the opinion of the court.
    This is a bill filed in the vice-chancery court, by Evans, to have a deed cancelled, which is alleged to constitute a cloud upon his title. The complainant purchased the land under an execution from the district court of the United States, at Pon-totoc ; Banks purchased the same land under executions from the circuit court of Lowndes county, against the same party. The judgments under which Banks purchased are older than that under which Evans purchased; but it is ‘alleged that the preference and priority of the former have been lost from various causes.
    There is an elaborate argument on the part of the complainant in support of this position; which renders it necessary to examine the facts with some degree of minuteness.
    The sheriff’s deed to Banks recites that the sale was made by virtue of sundry executions, issued at the suit of Edward' Sims, Benjamin Clark and others, against Daniel W. Jordan et al. The answer of Banks states that the sheriff’s sale was made under four executions, against Jordan, one in favor of A. H. Gazzam, one of Joseph B. Yarnum, one of Benjamin Clark, and the other of Edward Sims. The argument endeavors to point out some defect, or negligence, or misconduct, or act in regard to each of these executions, which would vitiate the sale.
    It is certainly incumbent on the complainant to establish the facts which would annul the purchase of the defendant. Unless there be something to take the case out of the operation of the general rule, the title of the defendant must prevail. This is conceded by the complainant.
    The defendant was mistaken in the statement, that the land was sold under the Gazzam execution. The record shows that the sale was made on the 15th of June, 1840; and that execution did not issue until five days afterwards. It may, therefore, be rejected, as lending no support to the case.
    The execution of Varnum was levied upon personal property, in November, 1839. A venditioni exponas was issued in April, 1840, which was returned “ satisfied in fall from sale of property levied on.” An alias fi. fa. issued at the same time, which purports to have been levied upon the land, and a sale made under it; but the return shows it was satisfied by the sale of the personal property under the venditioni exponas, and reference is made to the venditioni in support of that fact. Whether this fi. fa. was void, or only voidable, and whether the sale under it can be sustained, need not be decided. We shall make some farther remarks upon this point, before we conclude.
    The bill states that there was no execution in favor of Clark in the hands of the sheriff. That it had been paid before April, 1840, and was never issued afterwards. The deed recites that this was one of the executions under which the land was sold, and the answer states the belief of the defendant, that it was in the hands of the sheriff at the time of the sale. This execution is not contained in the record.
    It devolves upon the complainant to make out his case. In reference to this execution, there is no evidence in support of the allegations of the'bill, nothing which contradicts the recital in the deed. His case at this point, seems not to be made out; but we shall proceed to the consideration of the execution of Sims, because the great struggle in the argument is made upon that.
    The first execution issued upon the forfeited forthcoming bond in the Sims case, was returned April 1st, 1840, with the indorsement, “ money not made.” Another fi. fa. issued 27th April, 1840, which was returned on 5th October, 1840, “ Levied on certain land (the same here in dispute), sold to Willis Banks at five dollars the acre, 15th June, 1840; and this execution satisfied in full.” There is nothing in either of these returns, which is sufficient to postpone the lien of the judgment. No indulgence was given by the plaintiff, although the sheriff failed at one term to perform his duty. That rendered the sheriff liable, but did not affect the judgment lien. There does not appear to have been any negligence on the part of the plaintiff, nor any interference by him with the due course of the law. There is nothing, therefore, in the returns upon this execution, which will vitiate the sale under it.
    A great deal of testimony has been taken to show that there was sufficient personal property levied on to satisfy this execution ; that part of it was left in the hands of the defendant, and was never sold under it, and that other personal property was released by the attorneys of the plaintiff. It is also attempted to be proven, that this execution was actually paid off and discharged before the sale of the land.
    The deposition of Donsing proves that, as deputy sheriff of Lowndes county, in January or February, 1840, he levied under this and other executions, upon a quantity of cotton at Jordan’s gin, supposed to be about seventy-five bales, and upon seventy-five bales more, which he was told by Jordan was in a warehouse at Plymouth, but which he never saw. He did not take possession of either lot, and it ,was never sold by the sheriff. Another witness proves that the cotton was shipped by Jordan to Mobile. We do not think this amounted to a valid levy; but if it did, still, it did not constitute a satisfaction of the execution. On that subject the rule is thus laid down, by a court of great respectability: “ The seizure^- of personal property under a fi. fa. is constructively a discharge of the debt. But if the defendant were never deprived of his property by the sheriff, or if he were, and got it back, either with or without the consent of the sheriff, it would be monstrous to say the defendant had paid his debt. The levy on property is not actual payment, which .the law always aims at. It is only constructively so, to prevent wrong. It is deemed a payment, in those cases, where if it were not, the defendant would be twice deprived of his property on the same judgment. In all other instances it is no payment.” Ex parte King, 2 Dev. 341. See Clerk v. Withers, 1 Salk. 322; Taylor v. Baker, 2 Mod. 214; Binford v. Alston, 4 Dev. 351; 4 S. & M. 135.
    In regard to the release of the other property by the attorneys, the testimony shows, that the written order to that effect, was construed by the sheriff to apply to the execution of Collier against the same defendants; and that in point of fact the slaves released, had never been levied on by this execution. This is a sufficient answer, but if the property had been seized under this execution, still we believe, that the general authority of an attorney at law as such, does not extend so far as to release property levied on. See Jackson v. Bartlett, 8 Johns. 361; Gorham v. Gale, 7 Cowen, 739 ; Clark v. Kingsland, 1 S. & M. 256. If there were any special authority in this case, it has not been shown.
    As to the remaining question, the effect of payment of a judgment before a sale is had under it, there is a want of harmony in the authorities upon the point. Luddington v. Peck, 2 Conn. and Dor v. Snyder, 3 How. regard a sale in such case as valid; whilst Sherman v. Boyer, 15 Johns., Hammett v. Wyman, 9 Mass., King v. Goodwin, 16 Mass., and Wood v. Colvin, 2 Hill, hold the contrary.
    But whatever may be the rule as to the validity of the sale, a point which need not be determined, it is clear and certain, that the lien of the judgment is discharged by the payment of the judgment. Jackson v. Cadwell, 1 Cowen, 640. A sale under an execution after payment of the judgment, cannot relate farther back, than the time when the execution went into the hands of the sheriff. H. & H. 630. We do not mean to decide,’ that it can have that effect; nor that the sale is valid at all, but conceding, for the sake of argument, that it is valid, it can certainly extend no farther, than the lien of the execution. These remarks apply equally to the Tarnum execution.
    Then the lien of the judgment, under which Evans purchased, would overreach the sheriff’s sale under these executions, if in truth, the Sims judgment had been previously paid. That point of fact, we will proceed to consider. The testimony is not so clear as it might probably have been made in the court below; but it is our duty to determine it upon such proof as'the parties have presented to us.
    There were various judgments in the circuit court of Lowndes county, against these same defendants ; and several executions were often in the hands of the sheriff at the same time. There were three judgments of Sims, one of the Tombigbee Bank, and one of Martin Collier, which claim our. attention. The aggregate amount of these, with interest and costs, is about $9,000. The complainant has made a calculation to show that all the executions against the defendants had been paid, at the time the land was sold. He intimates the amount of the executions at $5,150, and the amount of cash, which had then been paid, at $8,953.
    There are, as we think, several errors in his computation. In the first place, the execution of the Tombigbee Bank, and one of Sims, are omitted. Harris, in his deposition says, there were three judgments of Sims, to one of which a credit of $1000, proceeds of sale of cotton, was to be applied. The complainant has omitted the largest of the three executions, and applied this credit of $1000 to the other two. He has omitted the execution of the Tombigbee Bank, and has applied as a credit to the other executions of Sims and Collier, the sum of $1036.82, which was made upon this execution of the Tombigbee Bank, and applied by the sheriff as a credit to it. He appears to have credited $997, proceeds of sale of cotton, twice; once in a separate item, and once in the aggregate of $1997. So also, he appears to have put down' as credits the amount of sales of property made by the sheriff, and then the receipts of the attorneys to the sheriff for the money. Again he has included payments made after the sale of the land, to prove that the judgments were paid before the sale. Of this character is the amount made upon the Collier execution in Choctaw county, in 1841, and a voluntary payment made in October, 1840. When these errors are corrected, it is very manifest to us, that the judgment of Sims, was not paid at the time of the sale of the land.
    We do not perceive that any fraud has been practised by the defendant, or those under whom he claims.
    This view makes it unnecessary to consider of the other points, made in the argument.
    As the case depends very much on a complicated state of facts, and as the record is not so perspicuous as we could desire, we shall not preclude the complainant from another investigation in a different forum, if he should desire to try the matter in an action of ejectment. We therefore reverse the decree and dismiss the bill, without prejudice to the rights of complainant at law.
    Decree reversed.
   Upon the delivery of this opinion, a re-argument was applied for, on the part of Evans, and was granted; the re-argument was had at the present term, (January 1848.)

Mr. Justice Clayton

delivered the following opinion, on re-argument.

We have given to this case, since the re-argument, the consideration which its importance demands, but it has led to no change in the result. A few farther remarks may be deemed necessary.

In regard to the execution of Sims against Jordan, et al., under which the land was sold, objections are urged to it, because the return was erased and altered. We do not understand the facts as counsel do; — the return, if satisfied, which is erased, may well comport with the idea, that the satisfaction arose from the sale of the land in controversy, as set forth in the return as it now stands. The deed to the purchaser bears the date of the day of sale; the title it conveys cannot be affected by the return of the sheriff, made subsequent to the deed. Doe v. Heath, 7 Blackf. 156.

There is nothing in the record to show, that Banks does not occupy the place of a purchaser. There is no evidence that satisfies us he was interested in the execution. When he bought, the attorney placed a credit on the execution for his bid, with the understanding that Banks was to pay the plaintiff, as they both lived in the same neighborhood, in Alabama. The plaintiff, who alone had right to complain of this arrangement, has never done so.

We do not think the execution in question was paid before the sale took place under it. The statement and calculations of counsel, have undergone re-examination, and, to our minds, there are manifest errors. For example, the execution of the Tombigbee Bank is thrown out, and the money applied to its payment by the sheriff, is in the statement transferred as a credit to the other executions, because it was younger in date than the judgment under which Evans sets up title. Sims is not responsible for a misapplication of the money by the sheriff, if there were such, when the money was not made under his execution. For any thing that appears, he knew nothing of it, and was in no manner privy to it. The sale under a younger judgment did not divest the lien of his judgment, even as to the property sold; far less could it have that effect as to that which was not levied on. Another example of error in the statement is, that one execution of Sims is omitted; one, too, upon which money had been paid, now claimed as a credit to this. When these corrections are made, it is certain that this judgment had not been paid before the sale.

In the case of the Planters Bank v. Spencer, 3 S. & M. 313, cited in argument, to show that the judgment is satisfied, even where there is a misapplication of money by the sheriff, all the executions out of which the controversy arose, had been levied on the property, arid the sale took place under all. The court held, the sheriff was bound to appropriate, according to the date of the respective judgments. But the case has no application to executions not actually levied. We do not give our assent id the doctrine insisted on, that when a sheriff has several executions in his hands, a levy of one is a levy of all. In reference to a ca. sa., that is no doubt the rule, and that was the kind of execution in Collins v. Yemens, 37 E. Com. Law Rep. 175. But we cannot see the just application of such rule, to writs of fi. fa., although so held in New York, in Van Winkle v. Udall, 1 Hill, 560. When the body is under arrest, the practice is simply to charge the debtor in execution, not to make a second arrest. But when there are several writs of fi. fa. in the hands of the sheriff, he may levy some on personal and some on real estate; or he may levy part on personalty, and not levy, the others; and if sufficient money be not made, to satisfy all, the others may be afterwards levied on realty. The case cited, of Pickens v. Marlow, 2 S. & M. 434, relates to an actual levy of the execution. Nothing herein contained interferes with that case. It is there held, that a levy is only prima facie satisfaction, and does not destroy the judgment lien. The same is true of the cases of McGee v. Handley, 5 How. 625, and Kershaw v. Merchants Bank, 7 How. 386. The execution in this case was never in fact levied on personal property.

The rule is the same in reference to third persons, as between the parties themselves. Ford v. Geauga County, 7 Ohio Rep. 482.

He who comes into equity to get rid of a legal title, which is alleged to overshadow his own, must show clearly the validity of his own title, and the invalidity of his opponent’s. He cannot expect a court of equity to set aside a legal title, upon a doubtful state of case.

We cannot do more than reiterate our former decision, that the bill be dismissed, without prejudice to the legal rights of the complainant.

Decree reversed.  