Sec. 138. The priority in case of several levies-The officer must indorse on the writ the date he received it. When two or more writs of execution against the same debtor are sued out during the term in which the judgment was rendered, or within ten days thereafter, and when two. or more writs of execution against the same debtor are delivered to the officer on the same day, no preference will be given either of said writs; but if a sufficient sum of money be not made to satisfy all such executions, the amount made must be distributed to the several creditors in proportion to the amount of their respective demands. In all other cases the writ of execution first delivered to the officer must be first satisfied. And it is made the duty of the officer to indorse on every writ of execution the time when he received the same; but nothing herein contained can be so construed as to affect any preferable lien, which one or more of the judgments, on which execution issued, may have on the lands of the judgment debtor.24 24 Snyder, 5,971; Wilson, 4,637; Kansas, 4,897 (1901), identical; Nebraska, 1,482 (1907), identical; Ohio Gen. Code, Sec. 11,667 (1910), identical. See, in this connection, Meyer v. Bank, 55 O. S. 447; Ryan v. Root, 56 O. S. 302; Rough v. Acknovitch, 36 W. L. B. 302; Doll v. Barr, 58 O. S. 113; Weber v. King, 7 W. L. B. 148; Derkson v. Reed, 2 Handy, 159; Bank v. Roosa, 13 Ohio, 334; Waymire v. Staly, 3 Ohio, 366; Patton v. Sheriff, 2 Ohio, 395. In a proceeding to determine and adjust the priorities of certain liens existing against the real property of a debtor, it was found that an execution had been taken out on the judgment first rendered within one year after its rendition, and levied upon land subject to a mortgage; but it was erroneously appraised by excluding the amount of the mortgage debt, and the execution creditor directed the sheriff not to advertise and sell under the illegal appraisement. The levy was made upon the whole estate, and not upon a mere equitable interest. Within the succeeding year other judgments were obtained, and the proceeding to subject the mortgaged land of the debtor to the payment of the liens, and to determine the respective priorities of the same was begun and tried. Held, that the existence of a mortgage upon the land, or the illegal appraisement of the same, or the direction of the execution creditor to the sheriff not to advertise and sell under such appraisement, did not invalidate the levy, but the levy as made, preserved the preference and priority of the lien of the judgment first Sec. 139. If no goods, to levy on real estate. The officer to whom a writ of execution is delivered, is required to proceed immediately to levy the same upon the goods and chattels of the debtor; but if no goods and chattels can be found, the officer must indorse on the writ of execution, "No goods," and forthwith levy the writ of execution upon the lands and tenements of the debtor, which may be liable to satisfy the judgment; and if any of the lands and tenements of the debtor which may be liable be incumbered by mortgage or other liens, such lands and tenements may be levied upon, appraised and sold, subject to such lien or liens, which must be stated in the appraisement.25 Where the officer fails to find any goods and chattels and levies upon the real estate, the writ cannot be avoided because, in making the return, he does not use the exact words of the statute as to "no goods." 26 The provision of this statute that if no goods or chattels can be found, the officer must indorse on the execution, "No goods," is directory merely, and the execution debtor may waive the provision. Such waiver will always be presumed unless he asserts his right thereto by direct proceeding. In a case where the debtor has goods and chattels, but the officer does not levy thereon, but does levy on the lands of the judgment debtor, the lien of such levy on the lands will not be lost as against subsequent purchasers and creditors because the officer omits to indorse on the writ "no goods." 27 The return of the writ in such case by direction of the creditor without sale of the property, is not a discharge of the lien.2 And if the officer levies on both real and personal property, rendered. Excelsior, etc., v. Boyle, 46 Kan. 202, 26 Pac. 408; DeJarnette v. Verner, 40 Kan. 224, 19 Pac. 667; Smith v. Kimball, 36 Kan. 474, 13 Pac. 801. 25 Snyder. 5,972; Wilson, 4,638; Kansas, 4,898 (1991), identical; Nebraska, 1,483 (1907), similar; 28 Ohio Gen. Code, Sec. 11,666 (1910), similar. 26 Trepiton v. Busee, 10 Kan. 1,070. 27 Coal Co. v. Bank, 55 O. S. 233. 28 Ibid; see, also, Cook v. Duismore, 5 C. C. (Ohio), 585. and sells both under the same writ, this does not make the levy void. 29 The officer making the levy has nothing to do with the liens or incumbrances on the land. It is his duty to levy on it and sell it. It is not for him to inquire whether the land is subject to any lien; 30 and if the officer is not proceeding according to law, he may be enjoined.31 Where real estate is levied on, appraised, advertised and offered for sale, but not sold for want of bidders, and the officer so makes his return, the lien still attaches, and the real estate may be again offered for sale under other writs. Sec. 140. The officer may require bond before levying upon goods claimed by third party. If the officer, by virtue of an execution issued from any court of record in this State, levy the same upon any goods and chattels claimed by any person other than the defendant, or be requested by the plaintiff to levy on any such goods and chattels, the officer may require the plaintiff to give him an undertaking, with good and sufficient security, to pay all costs and damages that he may sustain by reason of the detention or sale of said property; and until such undertaking be given, the officer may refuse to proceed as against such property.32 Sec. 141. When the officer may take a bond and leave the goods in the possession of the defendant. In all cases where the sheriff, or other officer, by virtue of an execution, levies on any goods and chattels which shall remain upon his hands unsold, for want of bidders, for the want of time to advertise and sell, or any other reasonable cause, the officer may, for his own security, take of the defendant, an undertaking, with security in such sum as he 29 Sullinger v. Buck, 22 Kan. 28. 30 DeJarnette v. Verner, 40 Kan. 310, 19 Pac. 666. 31 Ibid. 32 Snyder, 5,973; Wilson, 4,639; Kansas, 4,899 (1901), identical. may deem sufficient, to the effect that said property shall be delivered to the officer holding an execution for the sale of the same, at the time and place appointed by said officer, either by notice, given in writing, to said defendant in execution, or by advertisement published in a newspaper printed in the county, naming therein the day and place of sale. If the defendant fail to deliver the goods and chattels at the time and place mentioned in the notice to him, given, or to pay to the officer holding the execution the full value of such goods and chattels, or the amount of said debt and costs, the undertaking, given, as aforesaid, may be proceeded on as in other cases.33 Sec. 142. The notice of sale-Inventory-Goods taken in execution. The officer who levies on goods and chattels by virtue of an execution issued by a court of record, before he proceeds to sell the same, must cause public notice to be given of the time and place of sale, for at least ten days before the day of sale. The notice must be given by advertisement, published in some newspaper printed in the county; or, in case no newspaper be printed therein, by setting up advertisements in five public places in the county. Two advertisements shall be put up in the township where the sale is to be had; and where the goods and chattels levied upon cannot be sold for want of bidders, the officer making such return must annex to the execution a true and perfect inventory of such goods and chattels, and the plaintiff in such execution may thereupon sue out another writ of execution directing the sale of the property levied on as aforesaid; but such goods and chattels shall not be sold unless the time and place of sale be advertised, as herein before provided.34 33 Snyder, 5,974; Wilson, 4,640; 34 Snyder, 5,975; Wilson, 4,641; Ohio Gen. Code, Sec. 11,667 (1910), Kansas, 4,900 (1901), identical. Sec. 143. Property insufficient-Further levy-Indorsement by officer. When any writ shall issue, directing the sale of property previously taken in execution, the officer issuing said writ is required, at the request of the person entitled to the benefit thereof, his agent or attorney, to add thereto a command to the officer to whom such writ may be directed, that if the property remaining in his hands unsold, shall, in his opinion, be insufficient to satisfy the judgment, he shall levy the same upon lands and tenements, goods and chattels, or either, as the law shall permit, being the property of the judgment debtor, sufficient to satisfy the debt.35 Sec. 144. The appraisement under the levy-Qualifications of the appraisers-View of the premises. If execution be levied on lands and tenements, the officer levying such execution must call an inquest of three disinterested householders, who shall be resident within the county where the lands taken in execution are situate, and admin ister to them an oath, impartially to appraise the property so levied on, upon actual view; and such householders shall forthwith return to said officer, under their hands, an estimate of the real value of said property.30 An appraisement made before oath is insufficient.37 Where land is offered for sale and not sold for want of bidders, and four years afterward it is offered for sale again, under the old appraisement, the court will set aside the sale on proper application made for that purpose.38 In conducting the proceedings of a sale of real estate under an execution, or order of sale, a deputy sheriff may act for the sheriff. 39 35 Snyder, 5,976; Wilson, 4,642; Kansas, 4,902 (1901), identical; Ohio Gen. Code, Sec. 11,671 (1910), identical. 36 Snyder, 5,977; Wilson, 4,643; Ohio Gen. Code, Sec. 11,672 (1910), similar; Kansas, 453 (1889), iden tical; Nebraska, 1,490 (1907), similar. 37 Alfred v. Bank, 29 Pac. 471. 38 Kline v. Camp, 49 Kan. 114, 30 Pac. 175. 39 Young v. Wood, 83 N. W. (Neb.) 528; Neb. v. Marshall, 7 |