“The executions, respectively, of Bizzell and Hughes, appear to have be enissued after the lapse of more than one year from the date of the judgment in each case, and before the passage of the enabling act of December 15, 1865, dispensing with the revival, by scire facias, of all judgments recovered since the ll'th of January, 1861, on which no execution had been issued. But we can not presume, from this circumstance alone, that other executions in the cases respectively had not been issued before the lapse of time that would have made it necessary to revive the judgment.
The liens of all the parties having been equal, the main *473question in the case is, whether the money arising from the sale was properly applied by the sheriff.
The rule of the common law is, as was held by tbis court in the case of Rutledge's Administrator vs. Townsend, Crane & Co., 38 Ala. 705, “ that where property is simultaneously levied on under two or more executions or attachments, and the property is not of value sufficient to pay and discharge the debts thus levied, the liens being equal, the money, irrespective of the amounts of the several claims, must be applied equally to the several debts, unless a surplus remains after a full payment of one or more of the claims. In case there be such surplus, that must be applied equally to the balance of the unpaid debts.”
This rule of the common law has never been modified ■or repealed by statute, and is of full force iu tbis State.
But it is contended that the application of the money made by the sheriff was sanctioned by the parties; and that the appellant, by his receipt for his “pro rata share” s estopped from controverting its correctness.
We can perceive in the conduct of appellant in the matter, none of the ingredients necessary to constitute an ■estoppel.
The judgment of the circuit court is reversed, and the cause remanded.