The question presented for consideration in this case has not, as far as we have been able to ascertain, been directly presented or passed upon by the Supreme Court. It involves the proper construction and legal effect of Secs. 1 and 13 of Chap. 77, Revised Statutes. Sec. 1 provides: “ That a judgment of a court of record shall he a lien on the real estate of the person against whom it is obtained, situated within the county for which the court is held, from the time the same is rendered or revised, for the period of seven years, and no longer. Provided, that there shall be no priority of the lien of one judgment over that of another, rendered at the same term of court or on the same day in vacation.” And Sec. 13 of Chap. 77, supra: “ When the lien of several judgments is concurrent, by reason of the same having been rendered at the same term of court, or on the same day in vacation, and execution issued upon any one of such judgments is levied upon property subject to such lien, the property so levied upon shall be sold for the benefit of all executions issued upon such judgments, and delivered to the same officer or any of his deputies before sale. And the proceeds of such sale shall be divided upon the several executions pro rata, according to their several amounts.”
These two sections are in perfect harmony with each other. Although it is stated in the body of Sec. 1 that the lien is from the date the judgment is rendered, the right to the exclusive benefit of this lien is qualified by the proviso: “ That there shall be no priority of the lien of one judgment over that of another rendered at the same team of court.” The proviso qualifies the body of the section. Boon v. Juliet, 1 Scam. 258.
There is no question made that the facts'as found by the court are not sustained by the proof. The objection is based on a claimed error in the application of the law to the facts.
The court finds : That oaa May 25,1885, appellant recovered his judgment against August .Schiffea- for $7,203 and costs, and caused execution to issue thereon, and placed same in the hands of the Sheriff on same day, and that he had realized by sale of personal property, $5,117.46. That by virtue of said execution said Sheriff sold in due form of law, on September 16, 1885, to plaintiff in execution, for the sum of $1,965, certain real estate. And to Henry Conrad for $151 certain other real estate, which sum of $151 was in Sheriff’s hands. That at the same term, to-wit, June 15, 1885, Herman Badenhoop recovered a judgment against August Schiffer for the sum of §1,458.52 and costs. That an execution was issued thereon and delivered to the Sheriff on the 15th day of June, 1885. Applying the law, supra, to the facts of the case, Badenhoop recovered his judgment at the same term, caused his execution to issue thereon and placed it in the hands of the Sheriff. The execution of Heilman being levied upon the real estate, “The property so levied upon must be sold for the benefit of all executions issued upon the judgments rendered at the same term, and the proceeds of such sale shall be divided upon the several executions pro rata according to their amounts.” Ita lex set'ipta est. It is, however, insisted that the order to pro rate should have been based upon the amount of appellant’s judgment, and that no deduction should have been made for amount realized on personal property.
The time when a lien commences on personal property, as declared in Sec. 9, Chapter 77, supra, “Ho execution shall bind the goods and chattels of the person against whom it is issued, until it is delivered to the Sheriff, or other proper officer, to be executed.” Sec. 51, Chapter supra, provides if the goods and chattels sold on execution ha,ve been attached or seized on execution by another creditor, the proceeds of the sale shall be applied to the discharge of the judgments in the order in which the respective writs of attachment or executions became a lien, or are by law entitled to share. Baden-hoop, by virtue' of his execution, acquired no lien to share in the proceeds of the sale of the personal property in this case, as it did not amount to a sum sufficient to pay off the prior lien of appellant. Appellant having sold the personal property, and by such sale having received the full benefit of his execution lien thereon, can not now complain that he should be required to pro rate with Badenhoop, in accordance with the amount due him, at the time of such sale of the real estate. Could it be claimed that he had the right to sell real estate for the full amount of his judgment, and thus cut off the liens of the attaching creditors? Manifestly not. Or could it be claimed that he had the right even to sell for the balance due and claim a pro rata, on the whole amount of his judgment? His lien upon the real estate created by his judgment had been extinguished to the extent of the amount realized from the sale of the personal property.
And his lien at the time of the sale was for the balance due at that time on the judgment, and as to that balance, Baden-hoop was entitled to his fro rata share.
It is also insisted by counsel for appellant that the court erred in not allowing him to prove that the amount of $1,400 charged to him as the avails of personal property was for a bid made by him for a grain warehouse building struck off as personal property, and that the building had been taken from _ his possession as real estate covered by prior liens. Our answer to this objection is that this was a judicial sale, and that the rule cmeat emftor applies to all such sales. England v. Clark, 4 Scam. 486; Misner v. Eronger, 4 Gilm. 69.
It is further insisted by counsel for appellant that under the law the intervening liens cut Badenhoop off from sharing in the sales of the real estate made on Heilman’s execution, and that the court should have ordered the entire amount applied to his execution. The lien of Heilman was prior to that of the intervening liens. Their liens were subordinate to his. Under Secs. 1 and 13, Chap. 77, supra, he had no priority over Badenhoop to the extent of his lien. We are of the. opinion that the order made in this case is in perfect harmony with the law. And if, as claimed by counsel in this case, it works great hardship and injustice to the appellant, such arguments would be proper and right to the law-making power in this State. Our duty is to administer the law as we find it.
If the law is oppressive or unjust in any of its provisions, a strict enforcement thereof will .the more speedily result in its change. The order made by the Circuit Court in this case is affirmed.
Order affirmed.