In respect to personal property, the general rule is that executions are to be satisfied in the order of their priority, the writ first delivered to the officer taking precedence" as the first lien, and the others following in the order in which they are received. This rule obtains even though the first seizure may have been made on a subsequent execution; and if the Sheriff has more than one execution in his hands he should apply the proceeds of sale on the elder writ, for the sale is not for the benefit of the particular writ which is first levied, or under which the sale is made, but for the benefit of all the writs in his hands in the order in which they rank as liens upon the personalty.
So, also, a fieri facias delivered to a Sheriff takes preference of an attachment levied before they?, fa. but after such delivery. Freeman on Executions, Sec. 196; Herman on Executions, Sec. 183; Rogers v. Dickey, 1 Gil. 636; Leach v. Pine, 41 Ill. 65; Lawrence v. McIntire, 83 Ill. 399.
This much seems to be conceded in this case; but the contention of appellant is, that as the attorney for appellee gave to the Sheriff a description of the real estate and told him to levy appellee’s execution thereon, and at the same time informed him that he was about to file a bill in chancery in aid of such levy, and actually did file such bill, therefore appellee lost the right to levy its senior execution on the personal property and assert a priority over the junior writs, because the levy on real estate and the exhibiting of the bill in aid were inconsistent with a levy on the personal property and a suspension of the lien of the senior execution.
It is well settled doctrine, that as the object of an execution is to obtain satisfaction of the judgment on which it issues, therefore any act of the creditor, or directions from him to the Sheriff diverting the execution from this purpose, renders it dormant and inoperative against other creditors and clothes them with priority. Gilmore v. Davis, 84 Ill. 487; Koren v. Boemheld, 6 Ill. App. 275; Kellogg v. Griffin, 17 Johns. 274; Knower v. Bernard, 5 Hill, 377.
This doctrine had its origin in the Statute of 13 Elizabeth, Ch. 5, which provided that executions taken out with intent to hinder, delay, or defraud creditors, or others, should be, as against the persons sought to be hindered, delayed or defranded, utterly void.
It has been deduced from this statute that any attempt to make use of an execution, even without any actual fraudulent intent, for purposes of security merely, is a perversion óf the writ, and renders it constructively fraudulent as to junior executions and writs. It has been remarked that there is no settled rule whereby it may be determined when a senior writ Joses its preference, and that each particular case must be determined by its own peculiar circumstances.
Under the circumstances of the case in hand, the bank was guilty of no improper use of the process of the court, and by its conduct waived no legal right or lost no lien. Immediately upon recovery of judgment it sued out a fieri fiadas, and had it levied upon real estate, and on the same day filed a bill in chancery in aid of the levy, for the purpose of setting aside what it supposed to be a fraudulent conveyance of the land. It used unusual zeal and diligence in getting service and pressing the suit in aid.
The allegations of the bill were that William Butters had not sufficient personal property to satisfy the execution, and that James JEL Butters had not sufficient property liable- to execution to satisfy the judgment, and that he was virtually insolvent. It does not appear that at the time of the levy on real estate the bank had any actual notice of the personal property which was afterward seized and sold, or of its value. It may be the levy on the land was not the most effective way in which the bank could have proceeded in order to make its money and make it as quickly as possible, but probably it was not then advised of any more promising mode of procedure. In any event, what it did was in furtherance of the object of the writ, to enforce payment of its judgment. ¡Neither the bank nor its attorney directed the Sheriff not to levy on personal property. The bill in equity could only be prosecuted upon the theory, the personal property the defendants in execution had, was insufficient to satisfy the debt; and had the bank known there was sufficient of such property, it would clearly have been inconsistent in it to both file the bill and levy on the personalty. But that is not the standpoint from which this ease is to be regarded, for appellee was proceeding, as is shown by the allegations of the bill, upon the theory of an insufficiency of personalty, and there is nothing in the record to indicate it was not acting in good faith.
Besides this, a levy on real estate, even of value sufficient to pay the debt, is not prima fade a satisfaction of the execution. The levy, therefore, did not prevent. the Sheriff from seizing other property under the writ, and selling it. It will not do to say that whenever an execution is, by direction of a plaintiff, levied on' certain property, such levy is effective to suspend the lien of the writ in respect to all other property of the defendant in execution.
Even in regard to personalty, where a levy sufficient to pay the indebtedness operates sub modo as a satisfaction, it may turn out the property seized belongs to another person, or is exempt from forced sale, or is insufficient to satisfy the debt, or is removed from the possession or control of the Sheriff by the act of the defendant in execution. The rule prevails, without exception, that an officer, notwithstanding a prior levy, has, at any time before the return day, power to make such further seizure as may be necessary to satisfy the plaintiff’s debt. Freeman on Executions, Sec. 253; Montgomery v. Wayne, 14 Ill. 373. But here, as the first levy was upon real estate, the case is all the stronger for appellee, as such levy, regardless of the question of value of property, did not, like a levy on sufficient personal property, operate, while undisposed of, as such a satisfaction of the judgment as to bar an attempt to enforce collection in any other manner. Herrick v. Swartwout, 72 Ill. 340. In Deloach & Wilcoxson v. Myrick, 6 Ga. 410, a fieri facias had been levied on lands and the levy afterward dismissed by order of plaintiff’s attorney and a levy made upon a negro boy, and intermediate the two levies the boy had been sold to Deloach & Wilcoxson, and it was decided they could not hold the boy as against the lien of the plaintiff in execution. See also, Hammond v. Myrick, 14 Ga. 77, and Hogshead v. Caruth, 5 Yerg. 227.
The logic of appellants’ claim made herein would lead to the conclusion that a direction to levy upon, particular property would be effective to suspend the lien of the execution as to all other property of the execution debtor. Herein, we .think, lies the fallacy of his argument. It is true that from February 14th to March 11th the bank was not seeking to enforce its execution of February 14th against the personal property upon which it was subsequently levied, but, in our opinion, the conclusion does not follow therefrom that during that time the lien of the execution was dormant and constructively fraudulent as to such personal property.
That which the rule deduced from the Statute of Elizabeth is leveled against, is the perversion of the writ of fieri facias from its legitimate purpose of enforcing payment, and there is no such perversion when there is an absolute intention of collecting the judgment, and a levy is made in good faith which is afterward abandoned and a new levy made on other property, upon discovery of the fact the first levy is, or probably will prove to be, ineffective.
In this case the bank seems to have been more than ordinarily diligent and industrious in its efforts to enforce payment through its senior execution. At the time of the levy on the land it was already incumbered by a valid mortgage lien and a prior judgment lien, amounting together to about one half its value. As soon as it was ascertained from the depositions taken in the chancery suit that the conveyance to Druitt was probably T)ona fide and for a valuable consideration, the bank forthwith directed a levy upon the personal property, and shortly thereafter reAased the levy on the land and dismissed its bill in aid of such levy.
The fact that the bank supposed, at the time of the first levy and for a month thereafter, that it would be able to make its debt out of the realty, and did not during that time either intend or seek to subject the personal property in satisfaction of such debt, was not an abuse of the process of the court. The law does not punish the plaintiff in a senior execution for making an ineffectual levy by forfeiting his prior lien upon all property not included in such levy; all that it requires of him is, that he should act in good faith and retrace his steps during the lifetime of his senior execution and before the personal property has been actually sold by virtue of a junior writ.
If we are right in our conclusions, then appellant can take nothing by his claim that the direction to the Sheriff to levy the bank attachment writ of February 16th upon the personal property, was, by necessary implication, a direction to do nothing to overthrow the effect of that levy, and, therefore, a command not to levy the senior execution upon it. Besides this, as is well answered by appellee, in no other certain way than by this attachment could the bank share pro rata with other creditors of James B. Butters in any surplus of proceeds of sale of the personal property, levied upon, over and above the amount sufficient to satisfy its senior execution of February 14th.
It is further objected to the order of distribution made by the Circuit Court, that the Everingham judgment for $5,077.77 was a judgment upon which he was entitled to receive a •p?v rata share of the fund derived from the sale of the personalty. Appellant bases his claim in this regard upon two grounds. One is, that Sec. 37 of the Attachment Act, without any ambiguity of language, provides in express terms:
“ All judgments in attachment against the same defendant, returnable at the same term, and all judgments in suits by summons, capias or attachment against such defendant, recovered at that term, or at the term when the judgment in the first attachment upon which judgment shall be recovered is rendered, shall share pro rata, according to the amount of the several judgments, in the proceeds of the property attached, either in the hands of a garnishee or otherwise.”
The other ground relied upon is, that Everingham held the note upon which the $5,077.77 judgment was rendered as collateral security for the James B. Butters indebtedness to him, and that he should be permitted to enjoy the benefit of the right for which he contracted, to pursue both his remedies until the amount actually due him is paid; and that otherwise the security which he supposed he obtained is rendered nugatory, and the judgment which he holds as security is declared canceled.
Sec. 41 of the Attachment Act provides that the act shall be construed in all courts in the most liberal manner for the detection of fraud. In H. & St. J. R, R. Co. v. Crane, 102 Ill. 249, it was held that our statute relating to attachments, from its provisions and the spirit of the whole act, is entitled to and should receive a liberal and not a strict construction. It is plainly the intention and policy of the statute that all creditors who avail themselves of the right given to participate in the proceeds of the property attached byrecovering judgment in conformity with the requirements of the statute shall be placed upon an equality, and that the proceeds of the property attached shall be distributed among them equally and impartially in proportion to the amounts of their respective debts.
There was but one indebtedness due from James B. Butters to appellant, and that was merged in the judgment of $5,420, and the order of distribution made by the court directed that such judgment should receive its fro rata share of the residue of the fund left after paying off the execution which was a prior lien upon the fund. The judgment of $5,077.77 against William Butters and James B. Butters was a mere collateral security for the judgment against James B. Butters alone. The security it afforded consisted in the liability it imposed upon William Butters for the payment of the debt of James B. Butters. In respect to James B. Butters it was but a second judgment for the same debt. It would be a plain evasion of the intendment of the statute and a fraud and wrong upon the rights of other creditors, if one creditor should be allowed to recover separate judgments against the common debtor, upon divers evidences held for one and the same debt, and 'then be permitted .to receive a fro rata dividend upon each of such judgments. Such an interpretation of the statute would be a prolific source of fraud and injustice, and would render inoperative the legislative intention. We think the order of the court in-the premises was right. We find no error in the record, and the judgment will be affirmed.
Judgment affirmed.