SMITH et als. v. HOGAN, 4 Ala. 93

COLLIER, C. J. By a statute passed in 1830, it is enacted,- “ That the equitable title or claim to land, or other real estate, shall hereafter be liable to the payment of debts by suit in Chancery, and not otherwise; and when a bill shall be filed for that purpose, all persons concerned in interest, shall be made parties thereto.” It may well, be questioned, whether the mere possession of real property can be sold under execution, where the defendant has an equitable title to the same* The act cited, if it does not expressly, would seem impliedly to inhibit such a proceeding.

But we will forbear the expression of an opinion on/ftps point, as there is another on which we may, perhaps, more satisfactorily rest our judgment. Where goods are levied on by a fieri facias, the defendant may plead the taking.^in discharge of himself, and will not be liable to a second execution, unless they were removed by his connivance or permission, so that they could not be sold. [Webb v.

Bumpass, 9 Porter’s Rep. 204.] This being the case, the mere levy of ah execution places the property seized in the custody of the law, not subject to be taken by junior executions, so as-to divest an operative levy, previously made. And if the older execution^' to which reference is made in the bill of exceptions, were levied simultaneously with the plaintiff’s, the latter could only come in after the former were satisfied.

Now it is shown by the evidence set out in the record, that the entire .property levied on was not of more than value sufficient to pay/he older executions,and it necessarily follows that the plaintiff ’has no right to complain, that the sheriff could by due diligence have made the money on his execution. If neglect is attributable to the sheriff, there is nothing in the record to show that consequence/jfrejudicial to the plaintiff resulted ; if any one can complain, ft must be the plaintiff in .the executions which operated a prior lien. It is insisted for the defendant in’* error, that the ease of Bell et al v.

King, [8 Porter’s Rep. 147,] is decisive of his right to recover. That was a proceeding by suggestion against the sheriff and his sureties similar to the present. The sheriff in his defence proved that at the time he received the plaintiff’s execution, he had in his hands two executions against the same defendant, amounting in the aggregate to a sum equal to the value of all the property in the defendant’s possession.

This defence was disallowed by the primary Court; and this Court say that the “ preference of an older over a younger execution creditor, does not excuse the sheriff from a levy of the latter, where the property is not needed to satisfy the former, as where the creditor waives his priority, or gives day, which, in the case before us, might possibly be inferred. But without resorting to any such inference, We think it clear that a return of nulla bona cannot be justified by the proof of a prior lien* unless the executions creating it were actually levied.” This case is obviously unlike that now before us.

There no levy was made on the defendant’s property by the older executions, so that it did not appear that the plaintiff in them, had any thing more than a lien in law which might never be enforced; but in the case at bar the executions were regularly levied, a circumstance which the case cited impliedly asserts would relieve the sheriff from the imputation of neglect at the suit of the junior judgment creditor. The levy of the elder executions designated the property •whi<;h was to be appropriated to their satisfaction, unless they were paid by the defendant.

And the mere omission of the sheriff to proceed to a sale, according to the directions of law, cannot make the property levied on liable to the payment of a junior execution, and thus defeat a lien which existed not Only in law, but had attached in point of fact. To apply these principles to the case at bar, if the elder executions were levied simultaneously with the plaintiff’s, on property of not more than sufficient value to satisfy the former, the sheriff has been guilty of no neglect which can prejudice the plaintiff, and the charge prayed by the defendant should have been given to the jury.

Other questions have been argued by counsel, and are presented by the record, but as the point considered will probably be decisive of the cause, in its ulterior progress, We will not notice any other. We have only to add, that the judgment of the Circuit Court is reversed and the cause remanded.