(dissenting): The distinction must be clearly kept in mind between the lien, which is the right accruing *92as between the judgment creditor and debtor, to subject the property, and the priority in the application of the proceeds of a sale under execution, which is the apportionment of the rights of judgment creditors among themselves.
The manner of acquiring the lien as to real estate has been changed by statute. The apportionment of the proceeds of sale according to priority has never been affected by statute and, as the courts possess no legislative power, the law as to priorities among execution and judgment creditors necessarily remains as it has been uniformly recognized for an uncounted number of years.
Prior to the adoption of The Gode there was no lien on real property till the levy of an execution (as is still the case as to personal property) and if there were two or more executions in the hands of the Sheriff, the priority in the application of the proceeds of the sale belonged to the execution of the oldest original teste whose chain had been kept up by a successive issue of executions from each succeeding term. The same rule applied as to personal property. It made no difference when the debtor acquired either species of property, whether before or after judgment. There was no lien as to either species of property till a levy, but whenever the lien was obtained by a levy the priority in the application of the proceeds of sale went to the oldest execution whose chain had been kept up unbroken.
The Gode, Section 435, provides that the docketing a judgment shall make it “a lien on the real properly, in the county where the same is docketed, of every person against whom any such judgment shall be rendered, and which he may have at the time of the docketing thereof in the county in which such real property is simated, or which he shall acquire at any time thereafter, for ten years from the date of the rendition of the judgment.” It will be *93uoted that this statute only changes the mode of acquiring liens against the debtor’s realty and does not purport to change the long settled and well recognized principle that though the liens may have been acquired, eo instanti, by a levy of several executions at once, (or, as in this, case by the acquisition of property subsequent to docketing of the judgments) the priority among the creditors, in the application of the proceeds, goes to the oldest judgments in the order of their seniority. As the statute has not changed this the courts have no power to do so. This Section (435) merely does away with the necessity and useless expense of issuing execution from each successive term by making the docketing a lien on all the judgment debtor’s realty which he has, or may subsequently acquire, for ten years in the county where such judgment is docketed. Sawyer v. Sawyer, 93 N. C., 321.
The statute gives no indication of a disposition to put the diligent creditors, who hold the oldest judgments, in any worse condition than formerly. This statute (The Gode, 435) was indeed for their ease, by relieving them of the necessity of issuing a chain of successive executions to maintain their priority, and it is accordingly careful to make such judgments a lien also on all real property which the judgment debtor shall thereafter acquire. This view is sustained by a well considered opinion in Creighton v. Leeds, 9 Oregon, 215, in which State the statute is almost identical with ours, and Kollock v. Jackson, 5 Ga., 153; 8 Am. & Eng. Enc., 988. In the Oregon case, just cited, the Court say (irrespective of the additional fact that with us the law of applying the proceeds to the judgments according to seniority has not been changed) that by the words of their statute giving a lien on subsequently acquired property (using the same words as our statute), “there is an inchoate right of lien — a remedy for the satisfaction of *94claims against tbe debtor — which confers the power of relating back,” so that when the liens attach to'subsequently acquired property the proceeds, upon being brought in custodia legis by execution sale, are applied'according to the seniority of docketing.
Indeed, the exact point at issue has been recognized as settled in Titman v. Rhyne, 89 N. C., 64 (on p. 67,) where the Court say, “The judgment of Wright became a lien on all the lands of Linebarger, which he owned in that county at the date of the docketing, or at any time within ten years thereafter, and no subsequent lien would displace it; nor would any sale under execution, issued upon a judgment docketed subsequently to it, operate to discharge it, or pass the title to the land, except subject to it as a prior lien.”
Avery, J. : I concur in the above dissenting opinion.