The defendants allege, positively, in their answers, that the five quarter sec. tions were sold in a body, at the average price of $5,50 per acre, amounting to $4400. Henry Bell, Michael Newman, and Michael Beam, Jun. testify to the same fact. They prove that the land was sold in a lump, at an average price, and by a single contract. The testimony of Pearce amounts to the same thing. He heard the parties speak of the transaction as one contract, and understood from them that the land was bound. In addition to this the nature of the transaction and the circumstances attending it, show clearly that there were not two contracts. There was a great difference in the value of the quarters, both as to quality of soil, and improvements. Some of them were entirely unimproved, a part of them was improved to a considerable extent, and yet they were sold at an average price.

This could not have been the case, if they had been purchased separately. The sum of twelve hundred dollars paid in hand was deducted from the amount of the five quarters, and notes with security were given for the residue, with. out distinguishing for what particular portions of the land they were given, and all the quarters were purchased at one and the same time. From these circumstances, independent of the testimony, the inference is irresistible, that the five quarters were purchased by one and the same contract. The execution of the title bond, is no evidence of two contracts. It was the natural consequence of the difference in the situation of the title. As there was money due to the United States on three of the tracts, which was to be paid by the purchaser, it was necessary to assign him the certificates for those tracts, to enable him to complete the payment, and as the vendor was to retain the title of the two, for which patents had been obtained, it was natural to give a title bond, and as it was the understanding of the parties that all the land was to be bound for the purchase money, and as obligations had been given for the whole amount, the sum named in the title bond was most probably accidental. There is no rule of calculation suggested by the case, from which it can be ascertained that seven hundred and fifty dollars was due on the two quarters. At the average price, they amounted to seventeen hundred and sixty dollars. If the whole payment of twelve hundred dollars, be deducted from them, the sum due would be five hundred and sixty. If a proportionate part be deducted, the sum due would be twelve hun. dred and eighty dollars.

The admission so much relied on, that seven hundred and fifty dollars had been paid, amounts to nothing, for it appears from the testimony of Mr. Parker, that at the time those declarations were made, the payments amounted to more than three times that sum, as the original debt had been reduced to eleven hundred and sixty-seven dollars. But there is not the slightest reason to suppose that any part of this money was paid with special reference to these quarters. Counsel have labored to give the case aspect, but without success. The facts do not sustain it.

The fourth and last enquiry is, will the court give effect to the deed executed by the executors.

Chancery may aid a deed, rendered inoperative by accident, or mistake, when the grantor had power to convey, and intended to do so, but it cannot generally supply a want of power. It cannot give effect to deeds executed by persons who have neither title, nor authority to convey, from those who have the title,

The deed from the executors of Newman to Beam, was unauthorised and illegal. Its operation was not prevented by a defect in the form, or in the execution of it, but by a total want of power to convey, which no court of equity can supply. A decree may remedy a mistake in a conveyance by a person having power to convey, but it cannot create a power. The former is often done, when the rights of third persons are not affected, or when equity would, in the first instance, have decreed a conveyance. But in this case the executors attempted to convey without authority, and if their deed had taken effect, it would have been injurious to third persons. The statute has pointed out the only method by which executors, or administrators can obtain power to sell real estate, or to execute contracts for the sale of it, made by their testators, or intestates. It is necessary to pursue that course, in order to obtain that power, and an attempt to convey, before they have done so, must be wholly inoperative. The power must be obtained from the common pleas, and it would not be more irregular, for this court to grant the power in the first instance, than to remedy a want of it, after a fruitless attempt had been made to execute it, and besides, when application is made to the common pleas, for an order to execute a contract, it is their duty to see that the contract has been fairly made, and fully complied with on the part of the purchaser, and if they should unadvisedly, order a conveyance, while any portion of the purchase money was due and unpaid, it would be contrary to the statute, and such a fraud on the heirs or devisees, as would justify the interference of this court for their protection.There are two circumstances then, which prevent us from giving effect to the deed made by the executors of Newman.

1. They made it without having obtained a power for that purpose from the court of Common Pleas.

2. As the contract had not been fully complied with on the part of Beam, the Common Pleas were not authorized to grant the power, and if they had made an order for that purpose, it might have been avoided as a fraud, on those who were interested in the contract; so that the question resolves itself into this, will chancery give effect to a deed made without authority, and under such circumstances as would authorize them, if an authority had been granted, to lay their hands on it as a fraud on third persons.

But

The complainant seems to rely much on the alleged equity of his case. if he has an equity it cannot aid him, because the defendants have an older and a stronger equity. It does not appear when the debt to Tiernan was contracted, nor is it material to know. His judgment was rendered in 1817. The lien of the defendants has existed since 1811. The equity of the complainant extends only to that portion of interest, that would remain in Beam, after all prior equi ties are satisfied. On this principle he is to be postponed to the defendants who hold an older equity. The defendants have also the strongest equity. Newman was the proprietor of the whole property. He was not bound to sell it; and after he had contracted to sell, he was not bound to convey, till the consideration money was paid. Beam had no right to appropriate it to his own use, or to the use of his creditors, further than he had made it his own by paying the purchase money. Were we now to appropriate the proceeds of this land to the satisfaction of the judgment, we should virtually decree the estate of Newman to pay the debts of Beam, without a previous liability, and without a

consideration; but on the other hand, if the complainant receives what the land is worth, more than the residue of purchase money due on the contract, he will obtain all the right of his debtor, beyond which he has no equitable claim.The complainant's counsel to strengthen himself on this point, urged very earnestly, that Beam had treated the land as his own-that it was reputed to be his-that it gave him credit-and that the world was thereby deceived. In a contest about personal property, as to which possession is prima facie evidence of right, such facts as these are entitled to weight and are sometimes decisive of the matter in controversy, but the occupancy of land is not considered as an evidence of title. No prudent man would rely on such circumstances, but would rather resort to the records, where the truth may be ascertained, and if he omit this precaution the consequences are chargeable to himself. But the argument drawn from this source is wholly gratuitous, because there is no evidence to show that Tiernan knew of such facts, or relied on them, when he gave credit to Beam. If the legal title had been conveyed to Beam, and the defendants were resting entirely on their equitable lien, there might be some plausibility in recurring to these circumstances: but the fact is not so, the legal title has not been conveyed, the defendants were not bound to vigilance, they had the same right to rely on their title, as a legal mortgagee has, and the same right to reply to the complainant, caveat. emptor. It is readily admitted that facts of this description, sustain the exception to the general rule, made in favor of subsequent purchasers, for a valuable consideration, without notice, as to whom the equitable lien cannot be enforced. It was also urged that Hedges, considered the deed from the executors as valid, and supposed that he had no right to rely on the land as a fund to pay the purchase money for which he was bound to Newman. This may be so, but his ignorance does not forfeit his rights.

On the whole, we are satisfied, that the sum due to the estate of Newman, must first be paid out of the proceeds of the sale, and the residue paid over to the complainant.

MICHAEL PATTON v. THE SHERIFF OF PICKAWAY COUNTY.

Under the execution law of 1824 a levy made within a year from the date of the judgment, and set aside after the expiration of the year, loses the lien as against subsequent judgments upon which a levy is made within the year and continued until the sale.

Where a levy is set aside, the parties stand in the same situation as if no levy had been made. This was an amicable action, brought to decide the right of the plaintiff to certain monies made upon execution. It came before the court, upon a case agreed, and was adjourned from the county of Pickaway.

The plaintiff, Patton, obtained two judgments against Bently-one in July, 1820, one in April, 1821. Upon both these judgments executions were sued out, in June, 1821, and, on the 28th of that month, levied on the real estate of Bently. In July 1822, the appraisement and the levy were set aside. On the 23d of January 1823, writs of fi. fa. were again sued out, and on the 22d of February, 1823, were levied on the same property first levied upon, and on one

additional lot. Alias process was sued out from term to term until January, 1826, when a sale was made.

At April term, 1821, J. Allen obtained a judgment against Bently. In June 1821, he sued a fi. fa. which was levied on the same lots, July 21, 1821, and the process was regularly continued until the sale was effected in January, 1826.

There were other subsequent judgments, previous to January, 1823, upon which executions issued and levies were made. But as the two cases stated, embrace the point decided in the opinion, it is unnecessary to state them. Patton's first judgment secured the first lien. His second judgment was of the same term with that of Allen. None of the executions were sued out with. in ten days. Patton's were first sued out, and put in the hands of the sheriff. His levy was set aside in July, 1822. The levy of Allen was continued, and the question to be decided was, whether Patton lost his preference by setting aside his levy.

Opinion of the court by Judge HITCHCOCK.

In the present case, the court are called upon to give a further construction to the judgment and execution law of 1824. In the case of M'Cormick v. Alexan. der, (ante. 65) delivered at the last term, it was determined that, under that law, judgment creditors, who had not sued out and levied execution within one year from the date of the judgment, lose their lien and preference, as against subsequent judg ment creditors, who had sued out and levied execution within the year; and this, as well in cases of judgments before the enactment of the law, as after it.

It has been suggested, that such construction might be given to the fourth section of that act as would induce the court to doubt the correctness of this deci sion. That section of the law was carefully examined before that case was decided: it has been since, with equal care, re-examined, and we discover nothing in it which can, in the least, tend to change the opinion then expressed. Although a court may, and undoubtedly sometimes do, in the examination of a statute, find some things which are not consistent with their ideas of policy or of justice, yet it would be hghly improper to distort the language, or the evident meaning, in such manner as to give the statute a construction consistent with their own feelings, when such construction would manifestly defeat the intention of the legislature. The judgment and execution law of 1824, contains a system which is as well adapted, perhaps, for the state of Ohio, as any other which could be formed on the same subject. So far as it respects judgments, which shall be subsequently rendered, no one, it is believed, can, with propriety, complain. If there is any complaint, it must be on the ground, that the statute extends to judgments which were rendered before its enactment. If this be an

evil, it will soon be past. And to give a construction to any part of the statute which would destroy the harmony of the whole, in order to remedy this particu. lar evil, would be followed by consequences, the injurious effects of which cannot be easily foreseen.

The 4th section above referred to provides, "that when two or more writs of execution, against the same debtor, shall be sued out during the term in which judgment is rendered, or within ten days thereafter; and when two or more writs of ex ecution against the same debtor, shall be delivered to the officer on the same day, no

preference shall be given to either of such writs, but if a sufficient sum of money is not made to satisfy all executions, the amount made shall 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, shall be first satisfied; and it shall be the duty of the officer, to endorse on every writ of execution, the time when he received the same." Provisions similar in substance have been contained in ev. ery law on the same subject for many years.

In order to give a proper construction to this section, we must, as in every other case, look through the whole statute, and if possible, so construe it, that the whole may have effect, and that one part shall not defeat another. We must bear in mind that the legislature in acting upon this subject, are not legislating for a particular case. They are determining the rights of different judgment creditors, and also the rights of the judgment creditor and debtor. It is for these persons they are legislating, and as to others they go no further than an attempt to provide, that in the contest between these, their rights shall not be violated. Neither is the legislation confined to any particular species of property. Property in possession, whether real or personal, is taken into view.

By the first section of the act it is enacted, "that lands, tenements, goods and chattels shall be subject to the payment of debts, and shall be liable to be taken in execution," &c. The second section provides, "that the lands and tenements of the debtor shall be bound for the satisfaction of any judgment against such debtor, from the first day of the term, at which judgment shall be rendered," &c. It is this section which gives the creditor a lien upon the lands of the debtor, in consequence of the recovery of judgment, but it extends only to the lands situate in the county where the judgment is rendered. For the same section provides that where the lands are situate in a different county, such lands as well as the goods and chattels of the debtor, shall be bound from the time they are seized in execution. The lien which is thus created, is by subsequent provisions of the statute regulated as to other bona fide judgment creditors: as to all the rest of the world it appears to be perpetual. By the 9th section provision is made, that if an execution be levied upon the lands of the debtor, and it shall appear by the inquisition required by the statute, that the lands thus levied upon, at two thirds their ap praised value, are sufficient to satisfy the execution with all costs, the judgment upon which such execution issued "shall not operate as a lien upon the residue of the debtor's estate to the prejudice of any other bona fide judgment creditor. The 17th section determines the character, or continuance of this lien. Without repeating this section, it is sufficient to say, that by its provisions the lien is to continue one year, and for a greater length of time provided an execution be sued out and levied within that period. But if an execution is not levied within the year, the judgment shall not operate as a lien to the prejudice of “any other bona fide judgment creditor."

Taking these parts of the statute together, it is apparent that a judgment operates as a lien upon the lands and tenements of the debtor, and that this lien is secured to the creditor for the term of one year. Within that time no individual can deprive him of it. But if not enforced within that period, it is inopera. tive so far as respects a more diligent creditor.

If, in giving a construction to the 4th section of the statute, we were to pay no attention to the priority of judgments, upon which executions were issued, if