Although there are expressions used by the judges delivering the opinions in some of the early decisions of this court, going very far towards the position contended for by the plaintiff in error, yet there is no decided case at any time sustaining those dieta-, and, in the case of Ryan vs. Lester, 30 Georgia, 433, 439, this court reviewed the whole doctrine, and decided that if the goods levied on were shown to have been unproductive without the plaintiff’s fault, the levy is accounted for. *595And why not? The lien of the judgment, under our law, is upon all the property of the defendant, and does not, even as to personal property, depend on the levy. Why may not a plaintiff, therefore, levy and dismiss his levy? Who is hurt if the property goes back to the defendant? As to a surety, to whom the creditor owes a duty, there are authorities asserting a different rule, but a plaintiff in fi. fa. owes no duties of this kind to a purchaser from the defendant. He buys subject to the lien, and he must take care. An affirmative waiver, doubtless, would discharge the lien, but a mere failure of the plaintiff to carry into effect by sale, a levy, and permitting it to go back into the defendant’s hands, is no hurt to the purchaser of another article on which the judgment has a lien. And this was the practical effect of the conduct of Solomon and the defendant as to this levy. They, by agreement, took the property out of the hands of the sheriff. It was a dismissal of the levy. The sheriff lost control over it, and on the bankruptcy of the defendant it became subject to the jurisdiction of the court of bankruptcy. We think, therefore, the levy was accounted for. It was dismissed, and afterwards these very assets were carried into the bankrupt court for the benefit of the defendant’s estate. The dismissal was explained by showing that the properly was returned to the defendant or to his assignee. Nor was Solomon bound to follow the property into bankruptcy. He had his lien on this land, and he had a right to rely upon it. The bankrupt act does not force one who has a lien to go into that court. If he do prove his debt, the rule seems to be that he waives his lien and consents to stand on his priority in the distribution. We are inclined to think that any creditor, and, perhaps, even the holder of a warranty deed from the bankrupt whose property is subject to a lien created by the bankrupt, might, if he could show that a judgment creditor could get his debt by going into bankruptcy, compel the creditor, by a bill there filed, to come in. But, if he did so, he probably would have to bring his property in and take his equities with all the creditors. The mere failure of a judgment creditor to collect his debt out *596of his debtor’s property until it is exhausted, even by younger liens, does not affect his right to go on property sold by the debtor upon which his judgment is a lien.
We do not go into the other points in this record. If this personal property levy was accounted for, the verdict is right, since the lieu is good against the land even -though the sale was bona fids. We are not prepared to say that the failure to prove this judgment in bankruptcy waives its lien on this laud, oven though it should appear that it was older and higher than any other lien. ’ The other claims in bankruptcy have their rights, and it might be inequitable to permit the holder of this judgment to sweep the assets when it could be satisfied out of this land. The presumption is, prima facie, that the present claimant looked to this judgment when he bought, and paid less for the land in consequence. These would all be questions for the federal court. Besides, it does not affirmatively appear that this judgment would be the iiighest in rank. The date of the $ 10,000 00 claim of a lien by Philips does not appear, and it is not for Philips to show that liis judgment was not the highest in rank. For these reasons we affirm the judgment refusing a new trial.
Judgment affirmed.