dissenting.
The view which I take of the Act of the General Assembly, passed 19th December, 1822, necessarily compels me to dissent from the judgment of the Court in this case. It appears from the record before me, that Snelling and Buckner both obtained judgments against Charles Evans, in the Inferior Court of Talbot County, at the same term of the Court, in the year 1842. Evans, the defendant in the respective judgments, entered an appeal from the judgment obtained against him by Snelling, to ■the Superior Court, but did not enter an appeal from Buckner’s judgment. Judgment was regularly entered up and signed, in in the Inferior Court, against the defendant, in both cases, at the same term of the Court. In March, 1846, the appeal cause was tried in the Superior Court, and Snelling’s first judgment was confirmed. From the judgment rendered in favor of Snelling, on the appeal, confirming the first judgment against Evans, an execution issued and was levied on the property of Evans, the defendant, which property had been aliened and sold by Evans, after the signing of the judgment obtained by Snelling against him, in the Inferior Court, but before the signing of the judgment on the appeal. The property of Evans, so aliened and sold by him, between the signing of the first judgment and the signing of the judgment on the appeal, was sold by the Sheriff, by virtue of Snelling’s fi. fa. and the proceeds of such sale remained in the hands of the Sheriff. At the October Term, 1849, of Talbot Superior Court, Snelling moved a rule against the Sheriff, requiring him to pay over to his fi. fa. the money in his hands arising from the sale of Evans’ property. Buckner appeared and claimed the money on his fi. fa. and contended he was entitled to it, inasmuch as the lien of his judgment had priority in point of time over that of Snelling’s judgment. The Court below decid*130ed that Buckner’s judgment was entitled to the money, whereupon Snelling excepted.
The question presented by this record is, whether a judgment against a defendant, from which he enters an appeal, operates as a lien upon, and binds the property of such defendant, when the property is alienated and transferred by him intermediate the signing of the first judgment and the judgment on the appeal? If the property of the defendant which he alienates and sells, intermediate the signing of the first judgment and the judgment on the appeal, is bound for the payment of the judgment rendered on the appeal, then it follows, as a necessary consequence, that the lien attaches from the signing of the first judgment, for the reason, that the property being alienated and sold by the defendant, before the rendition of the judgment on the appeal, the latter judgment could not bind it.
The judgment on the appeal, being rendered after the defendant has sold the property, that judgment does not create a lien upon it or bind it; and if the property so alienated and sold by the defendant, is bound for the payment of the creditor’s judgment on the appeal, the lien attaches, from the date of the first judgment, according to the provisions of the first section of the Act of 1822.
By the Judiciary Act of 1799, all the property of the defendant is bound from the signing of the first judgment. Prince, 426. How bound? For the payment of the judgment creditor’s debt. The judgment creates a lien upon all the defendant’s property, for the payment of that judgment, and if the defendant alienates his property after the date of the judgment, it is still subject to satisfy it. If there had been no appeal from Snelling’s judgment, then it will be conceded that Buckner’s and Snelling’s judgments would have been entitled to a fro rata distribution of the money in the hands of the Sheriff, inasmuch as both were obtained at the same term of the Court, and both bound and created a lien upon the defendant’s property. Does the appeal, by the defendant, from Snelling’s judgment, vacate and destroy the lien created by the first judgment, so as to defeat his right to have a fro rata distribution of the money arising from the sale of property alienated by the defendant,, applied to his judgment on the appeal, according to the words and intention of the Act of 1822 ? The preamble to that Act recites, “ A contrariety of decisions *131having taken place in the different Circuits in this State, as to the time when the property of the party against whom a judgment is entered, shall be bound, Be it enacted, That from and after the passing of this Act, all property of the party against whom a verdict shall be entered and a judgment signed thereon, in conformity to the provisions of the 26th section of the Judiciary Act of 1799, shall be bound from the signing of the first judgment, in cases where no appeal is entered; but in cases where an appeal is entered from the first verdict, the property of the party against wliotn the verdict is rendered, shall not be bound except from the signing of the judgment on the appeal, except so far as to prevent the alienation by the party of Ms or their property, between the signing of the first fiidgment and the signing of the judgment on the appeal.” Prince, 451.
The object of this Statute is, to settle a definite rule of decision, as to the time when the property of the party, against whom a judgment is entered, shall be bound. The Statute declares, that all the property of the party shall be bound from the time of signing the first judgment, when no appeal is entered, affirming the Judiciary Act of 1799. The Statute then declares, that where an appeal is entered from the first verdict, the property of the party shall not be bound, except from the signing of the judgment on the appeal; that is to say, the property of the party against whom the first judgment shall be signed, shall not be bound from the signing of the first judgment, as declared by the Judiciary Act of 1799, where an appeal is entered, and repeals the Judiciary Act of 1799 to that extent. Then follows the exception expressly made by the Act, “ Except so far as to prevent the alienation by the party of his, her or their property, between the signing of the first judgment, and the signing of the judgment on the appeal.”
By the Judiciary Actof 1799, all the property of the defendant is bound, from the date of the first judgment, By the Act of 1822, the property of the defendant, when it has not been alienated between the date of the first judgment and the date of the judgment on the appeal, is not bound by the signing of the first judgment, but is only bound in cases where an appeal has been entered therefrom, from the time of signing the judgment on the appeal. But with regard to the property which the defendant has alienated, between the date of the first judgment, and the *132date of the judgment on the appeal, that property is bound from the date of the first judgment, as declared by the Judiciary Act of 1799, and may be taken in satisfaction of the judgment rendered on the appeal. The Act of 1822 never was intended, and does not repeal that part of the Judiciary Act of 1799, which declares, that all the property of the defendant shall be bound, from the signing of the first judgment, so far as respects the property which the defendant has alienated, between the signing the first judgment and the signing the judgment on the appeal, because such property is expressly excepted from the operation of the Act of 1822. That Act substantially declares, that in cases where an appeal is entered from the first judgment, the property of the defendant shall not be bound, only from the time of signing judgment on the appeal, except when the defendant shall alienate his property, between the date of the first judgment and the date of the judgment on the appeal, and then the property, so alienated by Mm, shall be bound for the satisfaction of the judgment on the appeal, from th& date of the first judgment, in the same manner as declared by the Judiciary Act of 1799. As I have before said, if the lien upon the property alienated by the defendant, is not created by the first judgment, it cannot be created by the judgment on the appeal, for the reason, that the defendant has alienated the property before the judgment on the appeal, and, therefore, the latter judgment could not bind it. I suppose it will be conceded, that Snelling might have levied on the property alienated, sold it, and applied the'proceeds thereof in satisfaction of his judgment, but for the judgment of Buckner, which is claimed to have priority of lien. If the first judgment of Snelling did not create a lien on the property alienated — did not bind that property from its date — on what legal principle could his judgment on the appeal, obtained subsequently to the alienation of the property, proceed to sell it as the property of the dfendant ? To authorize Snelling to sieze the property alienated, in the hands of the purchaser, as the property of the dfendant, and sell it in satisfaction of his judgment, he must necessarily have had a lien upon it; and the property must have been bound by that lien, in the hands of the defendant, before the alienation thereof to the purchaser. When did that lien attach to the property sold by the defendant? When did the property alienated become bound for the satisfaction of Snelling’s judgment ? Certainly not from the *133time of signing judgment on the appeal, for, at that time, the defendant had sold it. The lian was created from the date of the first judgment, while the defendant was the owner of the property; the lien was not created by the judgment on the appeal, after the defendant had sold the property. When Snelling obtained his judgment on the appeal, its lien related back to the date of the first judgment, so as to authorize him to seize and sell the property alienated by the defendant to the purchaser, as the property of the defendant. The property was seized in the hands of the purchaser, as the property of the defendant, by virtue of a judgment lien of older date than the purchaser’s title, and was sold by virtue of that lien, as the property of the defendant, and the money in the hands of the Sheriff was raised from the sale of the defendant’s property, by virtue of a lien which bound the property, of equal date with Buckner’s lien. Both liens were created' at the same term of the Court, and both were entitled to a pro rata distribution of the money arising from the sale of the defendants property.
One of two propositions must be true, in my judgment. Snelling either had the right to seize the property in the hands of the purchaser, sold by the defendant, between the date of the first judgment and the judgment on the appeal, in satisfaction of his-judgment lien against the defendant, or he had not. If it is conceded he had the right to seize and sell the property, by virtue of his judgment lien, as the property of the defendant, then his lien was created by the first judgment, which is of equal date with Buckner’s judgment — for Snelling has no judgment lien oí older date than the sale of the property by the defendant to the purchaser, but the first judgment — he has no other judgment lien but that of the first judgment, which could have hound the property in the hands of the defendant’s alienee. If Snelling, then, had such a lien, created by his first judgment, as authorized him to seize and sell the property as the property of the defendant? does the fact that Buckner has a lien of equal date, have the effect to vacate or weaken Snelling’s lien 1 Holding, as I do, that Snelling’s lien was created by the first judgment, and hound the property alienatedhy the defendant, from its date — Buckner’s judgment having been obtained at the same term of the Court as Snelling’s first judgment, their respective liens on the property of the defendant, which was sold, being of equal date — I am of the *134opinion, that the money in the hands of the Sheriff ought to have been distributed to their respective liens, pro rata.
In Hardee et al. vs. Stovall, Simmons & Co. (1 Kelly, 92,) I had supposed the same construction was given by this Court to the Act of 1822, for which I now contend. In that case, Stovall, Simmons & Co. obtained a judgment against Byne, at November Term, 1842, of Burke Superior Court, from which an appeal was taken. At the November Term of the Court, 1843, the appeal was dismissed, by consent, and the first judgment confirmed by the order of the Court. While the cause was pending, on the appeal, Hardee et al. obtained judgments against Byne. On a motion to distribute money raised by a sale of the defendant’s property, the question was made, whether the judgment of Stovall, Simmons & Co. had a lien on the money of the defendant, from the time of the dismissal of the appeal and the confirmation of the first judgment, or whether their judgment created a lien on the defendant’s property from its date, before the appeal? One of the assignments of error in that case was, “ that the Court erred in deciding, that when an appeal is entered in any cause in this State, the lien created by the first judgment (except so far as the same arises out of, and is authorized by the Act of 1822) on the property of the defendant, is not destroyed by said appeal.”
The plaintiff in error in that case contended, that the lien of the judgment was .vacated by the appeal, and that when the appeal was dismissed, and the first judgment confirmed, the lien of the judgment attached only from the time of such confirmation, and that Hardee’s judgment having been obtained between the entering the appeal and the dismissal thereof, was entitled to the money. This Court ruled in that case, that Stovall, Simmons & Co. were entitled to the money, and affirmed the judgment of the Court on the assignment of error before recited. Speaking of. the lien of the judgment, this Court said, “The truth is, that the lien of the judgment, at Common Law, is not extinguished hy the appeal, hut suspended. It is not true, although the appeal opens all the merits of the issue, that it vacates the first judgment or verdict. This effect is worked only when, there being a rehearing, there is a new verdict rendered, and a judgment on the appeal; and not even then, as we shall see, so as to authorize alienation of property, intervening the two judgments. The appeal is *135entered, and, indeed, the privilege of the appeal is given, for the benefit of the appellant. After the appeal is entered, there are cases in which the appellee acquires, by that fact, additional rights; but the rights of all other persons remain the same.”
In that case there had not been an alienation of property by the defendant, pending the appeal; but, according to my reading of that case, the principle is distinctly asserted, that an appeal does not vacate the first judgment, so as to destroy its lien on the defendant’s property, pending the appeal; and if the lien of the first judgment is not vacated by an appeal, where there has been no alienation of property by the defendant, pending the appeal, I think the argument drawn from the Act-of 1822; is much stronger, when there has been such an alienation, intermediate the two judgments.
According to my construction of the Judiciary Act of 1799, and the Act of 1822, and the construction given to the latter Act by this Court, in Hardee et al. vs. Stovall, Simmons & Co. I am of the opinion, the judgment of the Court below should be reversed. I am not willing to place it in the power of defendants to defeat creditors, equally vigilant, by giving such a construction to the Act of 1822, as will enable them to enter an appeal, in some particular cases, and then transfer their property, and defeat the lien of the judgment in such appeal cause, on the ground that the judgments not appealed from, havepriority of date, when the appeal judgment creditor sells the property alienated by the defendant, between the signing of the first judgment and the judgment on the appeal; to say nothing of the titles to property which may be disturbed by the construction of the Act of 1822, which a ma> jority of the Oourt feel it to be their duty now to give to it,