The opinion of the Court was delivered by
Gibson, C. J.Whatever the truth, we must take it as a conclusion of law, that the surplus money made on Dilworth’s execution by the sale of the Thompson property was legally applied to Burson’s judgment, though, as regards that property, it was posterior in lien to the judgment of Yerkes, the present applicant, which was by some unaccountable oversight postponed. In Gratz v. The Lancaster Bank (17 Serg. & R. 278), an award of money to one as a lien creditor who had no lien at all, was held conclusive as an adjudication in another court; nor can it, for the same reason, be questioned in a collateral proceeding depending in the same court. Now, though the money made on Dilworth’s execution was certainly misapplied in awarding it to Burson’s judgment, which was prior to that of Yerkes only so far as regards the property whose proceeds are now in contest, the misapplication was sanctioned by a decree which precludes us from compensating the error by an erroneous decree on the other side. The appellant’s case is undoubtedly an unfortunate one; but the hardship of it is attributable to his own supineness. Had he asserted his right at the proper time, the money would have been awarded to him; but as it was actually awarded to another by common consent, founded in common mistake, we are bound to say that, in contemplation of law, the award was right, In Gratz v. The Lancaster Bank we knew the application of the money to have been wrong, without presuming to question its propriety; and though we know tjie award of the money to Burson’s judgment to have been equally so, we are concluded by it in this collateral proceeding. Were we indeed to form an opinion on the basis of the dates assumed in the case stated, we might doubt even whether the appropriation were not proper; for it is stated that the Thompson property was purchased before Yerkes had obtained his judgment; and it does not appear to have been revived before the revival of Burson’s *226judgment against Gordon, the owner of each piece of property, and the common debtor. But as it is an admitted part of the case that the judgment of Yerkes was prior in lien to Burson’s judgment as regards the Thompson property, though posterior to it as regards the property on which Burson subsequently levied his execution, we must take the fact to be so; and consequently that there is an error in the dates as they stand on our paper-books. In any event, we dare not draw into question the legality of the appropriation on Dilworth’s execution, which vested in Burson such a legal right as the merely benevolent doctrine of substitution has never been allowed to disturb.
Decree affirmed.