The demurrers of Andrews & Co., and Mc-llvaine, to the replication of Johnson, makes it necessary to examine the relative merit of the several claimants to the fund in the hands of the garnishee.
If the attachment could be levied upon the land, after the levy of the execution in favor of the bank, a matter which will be hereafter considered, it is obvious the right of Johnson, the attaching creditor, is superior to that of Andrews & Co., assuming as appears to be the fact, that their judgment against Gee, was not obtained till after the levy of the attachment. Having no lien on the land, in virtue of their judgment, they must rely on the service of the garnishee process, which was not until nearly a year after the levy of Johnson’s attachment: it follows, that the lien acquired by the attach*749ment being prior in time, is superior to the lien acquired by the garnishment.
To determine the priority of right, between the attachment of Johnson and the lien asserted by Mcllvaine to the fund in the hands of the garnishee, we must look to the answer of the latter, which not being controverted, must be considered as true. The substance of the answer, is, that he agreed verbally with Gee for the purchase of the land, for a price stipulated, and after discharging certain debts, to pay the residue over to Mcllvaine, who was bound as surety for the payment of a debt for Gee. He declined however, to take the title from Gee, but was to receive a title from the marshal, who, subsequent to the agreement, had levied on the land at the suit of the bank.
The attachment having been levied on the land, previous to the sale by the marshal, the right of the attaching creditor must be superior to that of Mcllvaine, unless he can call to his aid the parol agreement of McDowell the garnishee, by which he promised to pay him the surplus of the purchase money, after satisfying the bank debt, in the event he became the purchaser of the land at the sale by the marshal. It appears to us very clear, that a conditional promise of this kind will not create a lien, which would override an actual lien, created by the levy of the attachment, before the contingency happened upon which the promise was to attach. If it was in the power of the parties to make a contract like this, which would prevent the creditors of Gee from acquiring rights in the mean time upon the property, or its proceeds, it is very clear from the answer of the garnishee, that no such contract was intended to be made by him. This is shown, first, by the fact that there was no written contract, and consequently, as it related to land, there was no valid obligation on either party. Second, that his promise was contingent, depending on his purchasing the land. His obligation therefore to perform this contract, did not arise until the contingency happened, and if in the mean time, by the act of a creditor of Gee, and by operation of law, another person became entitled to the funds in his hands, he is discharged from performing it, because, by operation of law' it has become impossible to perform it.
*750Our conclusion therefore is, that as the attachment of Johnson gave him a lien on the land, subject to the prior claim of the bank, he is entitled to the surplus of the purchase money, after discharging the bank debt, in preference to any lien which Mcllvaine had, in virtue of the contract between Gee and the garnishee, which, however valid and binding it might have been as between themselves, can have no efficacy against a right acquired by a creditor, previous to the time when the contract became obligatory on the garnishee. This brings us to the consideration of the question, whether the land could be levied on by attachment, having been previously levied on by the bank execution, by a different officer.
By the act of 1837, an attachment may be levied on land. [Clay’s Dig, 60, § 29.] The attachment law does not specify the mode in which this shall be done, and it is sufficiently manifested by the return of the sheriff, stating the fact, and describing the land levied on. We are not able to perceive how the fact, that the land had been previously levied on by execution, by a different officer, could prevent a creditor from levying his attachment subsequently, previous to its sale. The former levy did not divest the title of the defendant in execution. It still remained in him. He could, notwithstanding, have made a valid sale, and transfer of the land, subject to the lien of the judgment creditors, and if so, what reason can there be why a creditor may not levy process on that, which the debtor could sell. That the execution debtor may transfer his title to personal property under Such circumstances, was held by this court in Atwood v. Pierson, 9 Ala. Rep. 658, and again in Jackson v. Gewin, Ib. 116, and if so, there can be no doubt he can make the same disposition of real estate, under the same circumstances.
Nothing is more common, than that successive attachments, or executions, should be placed in the same officer’s hands, against the same person, in which case, if the property was not sufficient to satisfy all, they would be satisfied according to their respective priorities. That rule, it is contended, does not apply here, because the levy of the bank execution was made by the bank marshal, whilst the attachment was levied by the sheriff of Wilcox. To sustain this *751proposition, he relies upon the case of Hagan v. Lucas, 10 Pet. 400. The point there determined, is, that slaves taken in execution by the sheriff of a State court, cannot be again levied on by the marshal of the United States court, though a bond had been given to try the right of property in the State court, and the slaves delivered to the claimant. The principal argument, on which the decision is based, is, the conflict of jurisdiction, which would ensue if the property, whilst in the custody of the law under process from one jurisdiction, could be seized by process emanating from another. However true this proposition may be, in regard to personal property, which may be actually seized, and which cannot therefore be in the possession of two different persons, it does not apply to land, of which no actual seizure can be made, and of which the levy of an attachment can only create a lien, with a right to sell for the satisfaction of the judgment, if obtained. The levy of the bank execution on the land, was merely the initiatory step to a sale of the land, for the satisfaction of the judgment. If no such levy had been made,, the levy of the attachment would have been subordinate to the prior judgment lien. The levy of the bank execution on the land, was merely for the enforcement of the lien of the judgment, and if the property had been divisible, no more should have been sold, than was necessary to satisfy the judgment. If that were impossible, or if, from any other' cause, the entire tract was sold, the attaching creditor having a general lien on the land, must be entitled to the surplus, after discharging the judgment of the bank. If this is not so, the surplus would belong to the defendant in the judgment, as there can be no doubt, the sale by the marshal, would convey to the purchaser the title to the land, which in virtue of the paramount lien of the bank judgment, would be good against the subsequent lien of the attachment.
It is urged that the summons to Johnson, to contest his right to the funds in the hands of the garnishee, is not authorized by the statute. The act provides, that when the garnishee shall answer. “ that previous to the time of such answer, he has received notice of the assignment, or transfer of the debt, or property, in respect to which the garnishment issued,” the court shall not determine on the validity of the *752assignment, or transfer, but shall cause a notice to be issued to the party to whom the transfer is alledged to have been made, to contest with the plaintiff the validity of the transfer, or assignment. [Clay’s Dig. 63, $ 39,40'.] In our judgment, the levy of an attachment, is within the evident intent and meaning, if not within the letter, of the statute. It is a transfer by operation of law, which is as fully within the intent of the statute, as a transfer in fact by the debtor. If this is not the proper construction of the law, a large class of cases, fully within the mischief designed to be prevented, are not provided for, and there would be no adequate protection for the garnishee, but in filing a bill of interpleader.
There can be no doubt, that in any case embraced by this statute, a writ of error will lie at the suit of any party aggrieved by the judgment of the court.
Johnson is the only party who has assigned error in this court, but as the cause must be remanded, it maybe properta remark, that the court committed an error, in referring to the jury the' question whether the plaintiff, or Mcllvaine had the superior lien. It was the province of the jury to determine facts, and these ascertained, it was a pure question of law, which had the superior lien. Upon the facts stated in the answer of the garnishee, and of those admitted by the pleadings, it is our opinion, Johnson in virtue of the attachment,has a lien upon the funds remaining in the hands of the marshal, he having been notified of the attachment, superior to the lien either of the plaintiff, or Mcllvaine. How the surplus, if any, should be disposed of, is a question not raised by any assignment of error. Judgment reversed and cause remanded.