#### Alva C. Tucker *v.*John Shade.

1. Judgment liens are created by the statute, and their extent and duratioá are such as the statute prescribes.

2. Where five years intervene between the date of the last execution issued on a judgment and the time of suing out another, the judgment, under the statute, ceases to operate as a lien on the estate of the judgment debtors, and the fact that in a suit between the judgment debtor and the. creditor, the latter was enjoined from issuing execution, will not have the effect to prolong the.lien.beyond the statutory period, as against a purchaser from the judgment debtor.

Error to tbe District Court of Allen county.

*356The original petition was filed by Shade, the defendant, in error, to enjoin Tucker, the plaintiff in error, from subjecting to sale on execution certain real estate, of which. Shade held the legal title and had the possession. Judgment was rendered in favor of Shade, quieting his title-. Theobjeet of this proceeding in error is to reverse that judgment.

The following are the facts so far as they are material to-an understanding of the decision:

At the June term, 1854, of the Court of Common Pleas of Portage county, Alexander E. Wilcox recovered judgment against Joel H. Curtis and David Erazer for $552.

On the 2d day of August, 1854, an execution was issued on this judgment, directed to the sheriff of Allen county, which was levied on the real estate in controversy. This writ was returned by the sheriff indorsed “ property not appraised or advertised for want of fees.”

Several writs of *vendi*were subsequently issued and returned. The third was issued on the 2d of April, 1858, and was returned, property not advertised “ for want of fees.”

On the 4th day of August, 1858, an *alias*writ of *fi. fa..*was issued on the judgment, directed to the sheriff of Allen county, which was, on the 14th of the same month, without being levied, returned in consequence of an injunction restraining all proceedings under it, allowed in an action pending in the Court of Common Pleas of Allen county, wherein Joel H. Curtis was plaintiff, and Alexander E. Wilcox and David Erazer and the sheriff, were defendants. In the petition in that case, Curtis claimed that he was merely surety for Erazer in the judgment, and he setup certain equitable grounds on which he asked that the sheriff might be enjoined from levying the execution then-in his hands on the property of Curtis, and that Wilcox might likewise he enjoined from collecting the money on the judgment. There was no reference in the petition to-the property in controversy, nor to the former writs that had been issued on the judgment.

An injunction was allowed as prayed for, and an under*357■taking given in the sum of $1,000. Process was duly served, and Wilcox, the judgment creditor, answered the petition. The cause was continued from term to term, without the making of any further orders, until the 19th of November, 1867, when it was dismissed without prejudice.

On September 18, 1867, a fourth *vendi*was issued, which was returned by the sheriff for want of fees to advertise. A fifth was issued November 27, 1867, the return on which ■shows that the premises were not sold for want of bidders.

On the 23d of January, 1868, a sixth *vendi*was issued, •proceedings under which were arrested by the commencement by Shade of the original suit against Tucker, to whom ■the judgment had been assigned by Wilcox.

It appears from the record, that Shade purchased the property on the 15th day of November, 1858, of Curtis and one John Benton; and that he received the conveyance, and paid the purchase-money, without actual notice of the alleged lien of the judgment, and he claimed to hold the property discharged of such lien.

*Isaiah Pillars,*for plaintiff in error:

I. The judgment became a lien on the premises at the •time of the levy of the execution. Code, sec. 421; S. & C. 1064.

II. When a judgment upon which the issuing of execution, *vendi exponas,*or any writ whatever to enforce the collection of, is enjoined or restrained by order of competent authority, the judgment does not, under section 422 of the code, become dormant in five years from the issuing ■of the last writ, if the injunction continues so long.

The five years, or statute limitation of the life of the judgment, begins to run only from the time of dissolving the injunction, or removing the disability. 6 Wallace, 532; 10 Ib. 218; *United States*v. *Hanford & Ely,*and *Same*v. *Hanford,*19 Johns. 172; 2 Tidd’s Pr. 1105, 4 Am. ed. 1856; *Mitchell*v. *Cue and wife,*2 Burrow, 660; *Powis*v. *Powis,*6 Moore, 517; 6 Mad. 288; *Underhill*v. *Devereux, 2*Sanders, 72, and note.

*358The statute providing that a judgment shall become dormant if not issued upon within five years, is not to be construed by the same rules as a statute of limitation, nor as being a statute of limitation; for the reason that the expiration of the time provided in the statute of limitations raises the presumption, which can not be rebutted, that the liability has been satisfied or extinguished; whereas a judgment simply becoming' dormant raises no such presumption.

Any act done by the judgment debtor, so that the judgment creditor can not enforce Iris judgment, should prevent the judgment from becoming dormant.

*C.*A. *Lamison,*for defendant in error.

White, J.

Judgment liens are created by the statute,, and their extent and duration are such as the statute prescribes.

Sec. 421 of the code declares : “ The lands and tenements of the debtor within the county where the judgment is entered, shall be bound, for the satisfaction thereof, from the-first day of the term at which the judgment is rendered. . . . All other lands . . . shall be bound from the-time they shall be seized in execution.”

Section 422 provides: “If execution shall not be sued out within five years from the date of any j udgment, . . or if five years shall have intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment shall become dormant, and *shall cease to operate as a lien on the estate of the judgment debtor”*

This section is a transcript of section 85 of the practice act of 1831, and is different, in terms, from the section on the same subject in the practice act of 1824. 2 Chase, 1273,. sec. 82. It is the last-named section that was under consideration in *Lytle et al.*v. *Cincinnati Manufacturing Co., 4*Ohio, 459.

It is well settled that the title of a purchaser from the-*359judgment debtor, is, on the judgment becoming dormant,, discharged from the lien, and that the subsequent revivor of the judgment will not affect such title. *Norton*v. *Bever et al.,*5 Ohio, 178; *Miner*v. *Wallace,*10 Ohio, 403; *Hutchinson’s Ex’r*v. *Hutchinson et al.,*15 Ohio, 301.

The only question, therefore, in this case is, whether the fact that the creditor, at the suit of the judgment debtor, was enjoined from issuing execution, had the effect to prolong the lien beyond the statutory period as against the purchaser from the judgment debtor.

We think it can have no such effect. The purchaser was no party to the suit in which the injunction was allowed. That suit only operated on the parties personally ¿ it had no reference to the property in controversy; nor was there any right set up in that suit to the property. The controversy was in reference to discharging Curtis, one of the judgment debtors, from liability on the judgment in the Court of Common Pleas of Portage county. To the extent that the right of the judgment creditor to legal process for the enforcement of the judgment was prejudiced by the injunction, he must look for redress to the injunction bond. The purchaser stands on his legal rights, and we discover no equitable ground on which they can he interfered with.

Whether the judgment creditor, after the dissolution of the injunction, could, under the present statute, have execution without reviving the judgment, or, if such execution should be issued, whether it wpuld be set aside at the instance of the judgment debtor, we need not now inquire. However this might be, it could not interfere with the intervening rights of the purchaser.

*Judgment affirmed.*

McIlvaine, C. J., Welch, Bex, and Gilmore, JJ., concurred.