(79 Hun, 134.)

#### VAN CAMP v. SEARLE, Sheriff, et al.

(Supreme Court, General Term, Fifth Department.

June 20, 1894.)

1. Attachment—Objections to Affidavit—Review on Appeal.

An objection that the affidavit is insufficient is available to other creditors of the attachment debtor only on motion to vacate the attachment, and cannot be raised on appeal from a judgment distributing the proceeds of the attached property.

3. Same—Warrant—Recital of Grounds.

Where a warrant of attachment recites that it appears by the affidavit “that the said defendant has absconded from the county of Orleans, his place of residence, with intent to defraud his creditors,” and the affidavit states that defendant had departed from the state with intent to defraud his creditors, the warrant complies with Code Civ. Proc. § 041, requiring it to “briefly recite the grounds of the attachment.”

3. Same—Lien—Withdrawal of Execution.

The withdrawal of an execution issued in a case in which an attachment had been granted does not affect the right of the creditor to share in the proceeds of property according to the priority of his attachment lien, where the property was sold under executions outstanding when plaintiff’s execution was withdrawn.

4. Same—Action against Executors.

Where an executor has left the state, and his letters have been revoked, the administrator with the will annexed may sue him on the ground that he has “wrongfully and unlawfully disposed of and converted” the property of the estate, and an attachment may be granted in such action.

5. Same—Lew on Real Estate.

Code Civ. Proc. § 697, provides that the respective preferences of several attachments shall be the same as in case of several executions. Section 1406 provides that the execution first delivered to the sheriff has preference, though executions subsequently delivered to him are levied first. *Held,*that attachments levied on land are entitled to priority in the order in which they are delivered to the sheriff.

Appeal from special term, Orleans county.

Action by Joseph Van Camp against Edward P. Searle, sheriff, and others. From a judgment determining the rights of the parties plaintiff and defendant, the Orleans County National Bank and others appeal.

Modified.

The action was brought to have ascertained and determined the rights of the parties, other than the sheriff, to, and for the distribution of, the proceeds which came to his. hands, of the property of Benjamin Van Camp, their debtor. The proceeds of his real estate were $6,175, less the sheriff's fees for charges and expenses, $105.75, leaving $6,071.25. The proceeds of the grass and fruit on the premises, $387.48, less liis charges, etc., $35.53, leaving $351,-90. The proceeds of personal property sold, $3,225.47, less his charges, $225.-53, leaving $2,999.91. The proceeds of the accounts collected, $510.12. loss his charges, $3.05, leaving $507.07,—making, together, $9,930.15. The parties commenced actions against such debtor, and proceeded to judgment against him; and, in many of them, warrants of attachment were issued against his property to the defendant Searle, as sheriff of Orleans county.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BBADLEY, JJ.

*758George Bullard, for appellants Orleans Co. Nat. Bank and Sawyer.

Horace McGuire, for appellants Buell & Bloss.

David N. Salisbury, for plaintiff and defendants Keeler & Salisbury.

S. E. Filkins, for respondent Searle.

Signor & Wage, for respondents Blood and another.

John Cunnoon, for respondent Hallock.

Thompson & Spencer, for respondents Rice and Briggs.

BRADLEY, J.

The purpose of the action is the determination of the rights of the parties, other than the defendant Searle, as sheriff, to the proceeds of the property of Benjamin Van Camp. He was treated as an absconding debtor, and, in more than 20 actions instituted against him, warrants of attachment against his property were issued, and delivered to Searle, the sheriff of Orleans county. Some of them were levied upon his personal property, and the others, and the most of them, were levied upon both real and personal property; and although, after the levy of the attachments, a large number of judgments were entered upon his confession, the controversy in this action has relation mainly to those parties in whose behalf attachments were issued, and levied on the property of the debtor. The defendant Searle, as sheriff, paid out of the proceeds of the personal property the amounts of the judgments recovered by defendants Mary J. Blood, Dellie W. Blood, Bidelman, Chester, Ooann, and Bice, and returned the executions issued upon their judgments “Satisfied.” He also paid to defendant Bruner $90.65 of the amount of his execution. Warrants of attachment were issued in the actions in which those judgments were recovered, and the levy of them by the sheriff upon the personal property was prior to that in behalf of any other of the parties; and those payments, with the sheriff’s fees and poundage, exhausted all the proceeds of the personal property, except $110.82.

The payment of the executions in favor of the defendants Blood is challenged for the alleged reason that their warrants of attachment had not the support of affidavits sufficient to justify their issue, and a like objection is made to the order for service of the summons by publication. The affidavits to obtain those attachments were alike in their provisions, and while they stated that Van Camp had departed from this state with the intent to defraud his creditors, and to avoid the service of a summons upon him, they failed to state any facts tending toi support such charges, and were therefore insufficient to protect the attachments, against a motion to vacate them. But no such motion was made, and as the money has been paid upon their judgments and executions, in discharge of the lien, the question of the insufficiency of the affidavits is not, as against those parties, available to the appellants. Code Civ. Proc. § 682; Woodmansee v. Rogers, 82 N. Y. 88. As the summons in each of those actions was served by publication, the sufficiency of the affidavits was essential to bring the actions within the jurisdiction of the court; and if they did not come up to the statutory requirement in support of the order of publication the judgments *759were Aroid, and the plaintiffs in them acquired no rights under or through mesne or final process in their actions. Fischer v. Langbein, 103 FT. Y. 84, 8 FT. E. 251. The view taken is that the affidavits upon which the orders of publication were founded Avere such as to render the service of the summonses made in each of those cases effectual.

The objection urged against the application of the payment to the satisfaction of Bidelman’s execution relates only to the sufficiency of the affidavit upon which the attachment was issued. So far as the defendants Bidelman, Chester, and Bice are concerned, what has been said about the payment of the executions of the Bloods is applicable to them, and in a like manner to the amount paid upon defendant Bruner’s execution. As Coann is not a party to this action, no inquiry is required about the payment of his execution; and, so far as the processes which came to the hands of the sheriff were regular on their face, he was justified in the execution of them. Savacool v. Boughton, 5 Wend. 170; Sheldon v. Van Buskirk, 2 N. Y. 473; Woolsey v. Morris, 96 N. Y. 315. The first executions which came to him upon the judgments of defendants Blood were general executions proAdded for by section 1369 of the Code, and he paid them. Afterwards, and before those defendants became parties to this action, they refunded to defendant Searle the amount so paid them, and thereupon special executions, according to the provisions of section 1370, were issued to him, and he paid to them, thereon, respectively, the amounts of the executions. The former were irregular, and the latter were regular upon their face, for the purpose of collection or payment from the proceeds of the attached property. The error was cured by the refunding of the money, and the issue of the executions in proper form, and the satisfaction of them, although, by expiration of the term of his office, the defendant Searle had ceased to be sheriff at the time the second executions were issued to him. Code, § 706. The proceeds applicable to the discharge by payment of the liens of their attachments may be deemed to have been held by him for that purpose until paid in satisfaction of the executions, which were regular in form, issued to him. Lynch v. Crary, 52 N. Y. 184. And there seems to be no difficulty about the regularity, on their face, of the attachments and executions of the parties to whom the payments were so made, other than the attachment of the defendant Bidelman and the execution of the defendant Bruner. In that attachment it was recited that it appears by the affidavit “that the said defendant has absconded from the county of Orleans, the place of his residence, with intent to defraud his creditors.” The statute provides that the warrant “must briefly recite the grounds of the attachment.” Code Civ. Proc. § 641. The recital in the Bidelman attachment is not a statutory ground for the issue of such process. Id. § 636. In the affidavit upon which it was issued, the ground stated for the application is that Van Oamp had departed from this state, where he resided, with the intent to defraud his creditors; and some facts and circumstances are there mentioned, intended to support that allegation, and, al*760though somewhat slender, they are such as to justify that conclusion, and give support to the attachment. For that reason the incomplete recital in the process is' not fatal to its .validity.

The execution issued upon the judgment recovered by the defendant Bruner is not set out in the record, but the court found that it was issued in the form prescribed by section 1369 of the Code. This was irregular, and as the provisions of section 1370 are imperatively applicable to an execution issued upon a judgment recovered in an action in which an attachment is issued and levied, and the summons not personally served, the execution was void. Place v. Riley, 98 N. Y. 1. The sheriff, therefore, was not justified in maldng payment upon that execution. The question as to the validity or regularity of the payments made upon the executions of defendants Bidelman and Bruner is not raised by exceptions of any of the appellants, other than Keeler and Salisbury. The real estate of Van Camp, upon which attachments were levied, was sold by virtue of executions on the 15th day of February, 1889; and on the part of the appellants, other than Keeler & Salisbury and the plaintiff, it is insisted that the proceeds of the sale were applicable only to the executions which were in the sheriff’s hands at the time of the first publication of his notice of sale, and at the time the sale was made, and that, as the consequence, the proceeds of the sale were not applicable to the execution of the Cornelia Brown judgment, the executions upon the judgments of Adason Kelsey, as administrator, etc., and of Keeler & Salisbury, or any of them. By the notice first published October 29, 1888, the sheriff advertised the real estate for sale on the 15th of December following. In that notice he stated that by virtue of several executions issúed out of the supreme court, to him directed and delivered, against the propert3r of Benjamin F. Van Camp he had seized all the right, title, and interest which Van Camp had in the real property described, on June 11, 1888, or at any time thereafter, and that he would expose such prope^ for sale December 15, 1888, at the hour and place mentioned. By notice dated the latter day, he stated that the sale was postponed until February 15, 1889; and by further or supplemental notice, dated December 18, 1888, by him subscribed, the sheriff stated that by virtue of several attachments and executions issued out of the supreme court, wherein Orleans County National Bank and John G-. Sawyer, respectively, were plaintiffs, and Van Camp defendant, he had levied upon the right, title, and interest which Van Camp had in the property described in the foregoing notice (before mentioned), on the 14th day of June, 1888, or at any time thereafter, and would sell the property on February 15, 1889, and then stated the amounts of such judgments of the bank and Sawyer. The property was sold on that day, and, from the time of such postponement up to the time of the sale, all of those notices were published together, weekly. By the certificate of sale the sheriff certified that he sold the property by virtue of executions issued on judgments recovered against Van Camp by Hallock, Briggs,' Buell, Bloss & Buell, Orleans County National Bank, and Sawyer, respectively, *761for the amounts stated in the certificate. The attachments in behalf of those judgment creditors issued to the sheriff in the order they are above named, except as to those of the bank and Sawyer. They were issued to him at one and the same time. If the proceeds of the sale had been applied only to the payment of the executions in the sheriff’s hands at the time of the sale, they would have been fully satisfied, but such is not the judgment entered upon the direction of the trial court. The distribution of the proceeds directed by the judgment was that they be applied to the payment of the Brown judgment, and to those of the attaching creditors,, in the order in which the attachments had been delivered to the sheriff. The execution before mentioned, upon the Brown judgment, was issued pursuant to an order granting leave to issue it, and on or about the 1st day of December, 1888, was delivered to the sheriff; and, although the original notice of sale had then been published for some weeks, the notice of postponement, with that following it, as we have seen, was duly published and given by the sheriff for at least six weeks after the receipt by him of such execution, and there is no available objection, founded upon the notice, why the sale may not properly have been made by virtue of that execution. There was none in the fact that the sheriff stated in the notice that he had seized the right, title, and interest which Van Gamp had in the land on June 11, 1888. That was the day on which the first attachment was delivered to him. The lien of the Brown judgment was then prior to that of any of the attachments,, and, so far as appears, there was no lien upon the premises intermediate the time of the entry of such judgment and June 11, 1888. The statute does not require that the execution upon which a sale of real property is made be specified in the notice or certificate of sale. Code Civ. Proc. §§ 1434, 1438. If, as it thus far appears, the sale may properly have been made by virtue of fluí Brown execution, pursuant to the notice given by the sheriff of the sale, he was not at liberty to treat the sale as made only upon the other executions in his hands at the time of the sale. It must therefore, for aught that yet appears, be deemed to have been made by virtue of that execution, as Avell as of those mentioned in the certificate of sale.

The executions of the attaching creditors Keeler & Salisbury and Kelsey, as administrator, etc., were on the day of, and prior to, the sale, withdrawn from the sheriff, and, immediately after the sale,, executions upon their judgments were placed in his hands. It is urged on the part of the appellants other than the plaintiff and Keeler & Salisbury that those creditors, by withdrawing the executions, denied to themselves the right to have their judgments paid from the proceeds of the sale. This is so, unless the levy of their attachments saves their right to share in such proceeds. The executions evidently were withdrawn to enable those creditors to redeem the property from the sale, if they should be so advised. This they could not do if their executions had remained in the sheriff’s hands at the time of the sale, as then the sale would haA'e been made on them, as well as the others held by him. Code Civ. Proc. § 1457; *762Ex parte Paddock, 4 Hill, 544. But those whose executions were withdrawn were attaching creditors, and their attachment liens were prior to those of the other appellants; and assuming that the premises were sold upon the execution issued upon the Brown judgment, which was a lien senior to that of any of the attachments, the sale was such as to vest title, when perfected in the purchaser, free from the lien of them, and it would seem that the proceeds, for the purposes of the lien of the attachments, became the substitute for the property upon which they were levied, else there would be no remedy for those attaching creditors whose executions were not in the sheriff’s hands at the time of the sale, other than that of redemption. This would practically deny to them any benefit of the lien of their attachments. The purpose of the levy of an attachment upon real property is to create a lien as of that time, and such is the effect of it; so that, when a judgment is recovered in the action, it, for the purpose of the execution of such lien, has relation to the time the attachment was levied, and, when the property is sold by the sheriff upon an execution issued on a judgment which is a prior lien to that of the attachment, the lien of the latter is available, in its relative order, upon the proceeds of the sale, for the purpose of satisfying the judgment of the attaching creditor, or so much of it as the fund applicable to its payment will satisfy. This was the right of all those creditors, in the present case, whose attachments were effectually levied upon the real property which was sold, whether or not their executions were in the hands of the sheriff at the time of the sale. Code Civ. Proc. § 641. And therefore the creditors whose executions were withdrawn from him, as before mentioned, were not, by the withdrawal of them, prejudiced in their right to take payment from the fund in the order of the lien of their attachments. For the purpose of obtaining such payment, executions in behalf of all the creditors to whom payment was, by the judgment herein, directed to be made, were issued, and delivered to the sheriff.

It is insisted that the judgment recovered by Cornelia Brown against Van Camp was not effectual to support the execution issued upon it, or to require the payment of it by the sheriff,—because it had been set off against an equal amount of judgments of Van Camp against her. This had been done by an order of the court, on his motion, but the order provided that such offset should not prejudice any lien which the defendants Keeler & Salisbury had upon the Brown judgment. They, as appears by the evidence, and facts found by the court, were attorneys and counselors at law, constituting the firm of Keeler & Salisbury, and as such had rendered services and paid out money for her in the action in which the judgment was recovered, and in other actions relating to the subject-matter of that action; and such services rendered and disbursements made by them for her, and at her request, were at least equal in value and amount to that of such judgment. They may be regarded as the equitable assignees of the judgment. Haight v. Holcomb, 16 How. Pr. 160. And they had the right to make it available, by process of execution, to satisfy their lien charged upon *763it. Code Civ. Proc. § 66; Martin v. Hawks, 15 Johns. 405; McGregor v. Comstock, 28 N. Y. 240; Goodrich v. McDonald, 112 N. Y. 157, 19 N. E. 649. Those attorneys did not consent that any set-off be made of the judgment, to the prejudice of their lien, and it was preserved by the terms of the order; and no reason appears why the existence and extent of their lien was not properly established by evidence in this action in support of the execution in their behalf, as found by the trial court.

It is urged by the learned counsel for the appellants the bank and Sawyer that the cause of the Kelsey action was not such as to permit the issue in it of the attachment in his behalf. Prior to the time of the commencement of that action, Benjamin F. Van Camp had been the executor of the last will and testament of Amos Kelsey, deceased, and, having failed to render his account as such, and left the state under the circumstances which he did, his letters testamentary ware by the surrogate revoked, and Adason Kelsey was appointed administrator with the will annexed; and thereupon the latter, as such administrator, commenced his action against Van Camp, and caused an attachment therein to be issued against his property. The complaint was of considerable length, and by it, among other things, the plaintiff alleged that Van Camp, having property and money of the Kelsey estate in his hands, had been required' and failed to render to the surrogate his account; that he had been removed from his position of trust, as executor, and the letters testamentary issued to him revoked; and that he had “wrongfully and unlawfully disposed of and converted the said property and money to his own use, to the damage of the estate of the said Amos Kelsey, in the sum of ten thousand dollars.” Judgment against him was demanded accordingly. The ground of the attachment, as recited in it, was that the action was brought to recover “a sum of money only, as damages for wrongful conversion of personal property, as will more fully appear by the complaint, and that a cause of action exists against said defendant, in favor of said plaintiff, for the sum stated in said affidavit, and that the defendant Benjamin F. Van Camp has departed from the state of New York, where he has been a resident, and with the intent to cheat and defraud his creditors, and to avoid the service of a summons upon himself.” The complaint may import the purpose to recover against the defendant therein as for a conversion of personal property, and, as such the action came within those in "which the statue permitted the issue of an attachment. But, in view of all the allegations of the complaint, such was not necessarily the nature of the action; nor was it of the recovery, as appears by the facts proven before the referee, and by his report, upon which the judgment was entered. If, as insisted on the part of those appellants, the action was for an accounting, as such, the plaintiff in it was not entitled to an attachment, and none could issue, because it would not then have come within the provisions of the statute permitting the issxie of sxich process. Code Civ. Proc. § 635; Thorington v. Merrick, 101 N. Y. 5, 3 N. E. 794; Ackroyd v. Ackroyd, 20 How. Pr. 93. And it has been held in Morse, v. Smith (Sup.) 17 N. Y. *764Supp. 385, that unless special circumstances exist, to permit am action therefor, it will not be entertained, to require an executax- or administrator to render an account, as for such purpose the jurisdiction of the surrogate’s court is deemed exclusive (Code Civ. Proe. § 2472, subd. 3), and was questioned in Hard v. Ashley, 117 N. Y. 666, 23 N. E. 177. The defendant in the Kelsey action had ceased to-be executor at the time it was commenced. It was therefore not brought to require Van Camp to account, with a view to have him administer the estate which had come to him, of the decedent. Its purpose was to recover the amount of the property and moneys which he had, as executor, taken into his possession, so far as the same remained unadministered by him; and if, for the purpose of such remedy, special circumstances were required, they existed, in the fact that he had left the state, and was not subject to the direction of the surrogate’s court. So far as related to the money into which he had converted the assets which came to him, he had only partially administered them, and the plaintiff was entitled to-the money, and no reason appears why he could not maintain ait action to recover it. In Walton v. Walton, 40 N. Y. 15; Id., 4 Abb Dec. 512, 2 Abb. Pr. (N. S.) 428, it was held that such an actio® was maintainable by an administrator de bonis non against the personal representative of an executor who had died without having fully administered the assets which came to him; and Judge Hogeboom there remarked that an action may be brought by the plaintiff, “to recover the property, against any person in possession of it;, trover or replevin, if it exists in specie, * * * or assxxmpsit or other appropriate action, if it has been converted into money,”’ The action was not necessarily one for an accounting, but, in view of what followed, may be treated as an action to recover the amount of money which, in the execution of his trust, Van Camp had derived from the assets which came to him as such executor, and which he was liable to pay over to the plaintiff, his successor. And re seems that, before the plaintiff in that action proceeded to jxidgment, Van Camp returned to this state, and stipulated that okJune 4, 1888, there was in his hands $1,840.31 in money, belonging-to the Axuos Kelsey estate; that such money was subject to the-payment of $622.62 to Keeler & Salisbury for legal services, etc-And he stipulated that judgment might be taken in the Kelsey action against him for $1,840.31, and interest from June 11, 1888,. with costs. The judgment was accordingly entered December 7,. 1888. We are inclined to think that the action was well brought by Kelsey, as administrator, etc., against Van Camp, and that the-alleged cause of action was such as to permit an attachment to-issue.

The defendants Keeler & Salisbury, having commenced against Van Camp their action to recover for professional services performed for him, in his matters as executor, etc., of Kelsey, deceased,, procured a warrant of attachment to be issued therein to the sheriff June 13, 1888. It was levied upon the real and personal property of Van Camp. Afterwards, and before judgment, the attachment' was levied upon certain accounts of Van Camp, against persons,, fair *765sums due from them to him, and thereafter the sum of $130.04 was collected by the sheriff on such accounts. Prior to the stipulation and judgment in the Kelsey action, and on December 3, 1888, Keeler *&*Salisbury recovered judgment in their action for $622.62 damages and $119.98 costs. Afterwards, an accounting was had by Van Camp in the surrogate’s court, and on October 8, 1889, a decree was there made stating the amount of money, etc., of the Kelsey estate in his hands; and after referring to the recovery of the Kelsey judgment of December 7, 1888, against him, and the Keeler *&*Salisbury claim, for which he had not been credited, the decree directed that, out of the funds of the estate of the decedent, the administrator with the will annexed pay to Keeler & Salisbury $622.62 and interest, amounting together to $667.76. Thereafter, and on the same day, Adason Kelsey, as such administrator, assigned his judgment to the plaintiff in this action, and received, as the consideration of the assignment, the full amount of it. And thereupon he, by written instrument to that effect, as such administrator, certified and acknowledged that he had, by such assignment, realized upon the surrogate’s decree $2,186.66, being the amount of the judgment so assigned. On the same day, Keeler & Salisbury assigned to the administrator the damages in their judgment against Van Camp, and received from him the amount of such damages. 'They reserved for themselves the costs on the judgment, with the right to enforce it in their behalf to that extent. So that all that remained unsatisfied of the judgment recovered in their action was $119.98, the costs, and interest upon that sum. The liability of Van Camp to Keeler & Salisbury was personal, notwithstanding She services were performed for him in his business as executor of Kelsey’s will. Mygatt v. Wilcox, 1 Lans. 55; Id.,45 N. Y. 306; Bowman v. Tallman, 2 Bob. (N. Y.) 385. No reason now appears why the judgment, to the extent of and for the costs included in it, is not available to Keeler & Salisbury.

In respect to the proceeds of the accounts collected by the sheriff, and of the sale of the real property, the question arises as to the order in which the attaching creditors are entitled to payment,— whether in the order of the receipt of the attachments by the sheriff, or of the levy of them upon such property. The statute provides that, where two or more warrants of attachment against the same defendant are delivered to the sheriff to be executed, their respective preferences are the same as where two or more executions against the property of the same defendant are delivered to the sheriff. Code Civ. Proc. § 697. And, as to executions, it is provided that the one first delivered to the sheriff to be executed has preference, notwithstanding the levy is first made by virtue of an execution subsequently delivered to him. Id. 1406. Such is the rule applicable to personal property subject to levy of executions. Camp v. Chamberlain, 5 Denio, 198; Peck v. Tiffany, 2 N. Y. 451; Pach v. Gilbert, 124 N. Y. 612, 27 N. E. 391. But, as the sheriff cannot take real property into its custody, it is necessary to constitute the levy • of an attachment upon it, that he file with the clerk of the county In which it is situated a notice of the attachment, stating the names *766of the parties to the action, the amount of the plaintiff’s claim, as stated in the process, and a description of the property levied upon, —the notice to be also subscribed by the plaintiff’s attorney. 'Code Civ. Proc. § 649. The levy of an attachment is essential to make it available as a lien, or to create by it security for payment of the judgment which may follow. Anthony v. Wood, 96 N. Y. 180; Warner v. Bank, 115 N. Y. 251, 22 N. E. 172. And it is the duty of the sheriff to whom an attachment is delivered to immediately levy it upon the property, personal and real, of the defendant, sufficient to satisfy the demand, if it can be found. Code Civ. Proc. § 644. He is thus required to levy them, if there be more than one, in the order in which they are received by him; and, for his neglect to levy such process, he may be liable to the plaintiff for the consequences. Lewis v. Douglass, 53 Hun, 587, 6 N. Y. Supp. 888. In view of the duty imposed upon the officer in levying attachments, it was evidently contemjilated by the statute that they would be levied in the order of their receipt by him, and for that reason there is no distinction in that respect made in its application to personal and real property, nor is our attention called to any case in which any such distinction is observed, since the repeal of the provisions of the Revised Statutes relating to attachments against absconding, etc., debtors. The provisions of section 697 of the Code, since then, may properly be applicable to attachments levied upon both kinds of property; and therefore it would seem that, in cases where attachments are issued to the same officer, the rule of preference relating to executions levied upon personal property is applicable to attachments levied upon property real as well as personal. Under the present statute, we think such must be the rule of distribution of the proceeds of the sale of real property among the attaching creditors who proceed to judgment, and it seems alike reasonable and just. In that view, the sale upon executions issued upon some or one of the judgments of the attaching creditors gives them no advantage over the others of them, which the lien of their attachments does not give them. Bussell v. Gibbs, 5 Cow. 390; Bowe v. Bichardson, 5 Barb. 385. Since a judgment is a lien upon the real property of a judgment debtor, no levy of execution issued upon it is made on such property. But if a levy were necessary, and the land charged only by it, as has been—and probably yet is—the case in some of the states, the rule applicable to levy and sale upon executions of real and personal property would be substantially the same. Gatlin v. Jackson, 8 Johns. 406. The execution of the lien of an attachment is contingent upon the recovery of a judgment in the action in which it is issued. Then it may be executed in the manner provided by the statute. Code Civ. Proc. § 1370. And, as an actual levy is necessary to create the lien of an attachment upon property, it would seem that, when several of them are levied upon the same real property of a defendant, the order of preference or priority would be the same, and founded upon the like reason, as that applicable to levy of attachments on his personal property, in the absence of any different rule upon the subject There seems to be none. And therefore the lien of the attachments levied upon the real *767property of Van Camp are entitled to priority in the order which they were delivered to the sheriff. Learned v. Vandenburgh, 7 How. Pr. 379, 8 How. Pr. 77; Yale v. Demick, 20 How. Pr. 430; Yale v. Matthews, 12 Abb. Pr. 379. These views are in accord with the direction in the judgment for the distribution of the fund among the attaching creditors other than the defendant Bruner, to whom the payment before mentioned was made upon an execution irregular on its face, and void for the purposes of collecting anything from the fund in question; and, for want of an affidavit to justify the issuance of the Bruner attachment, the levy of it was ineffectual to support a lien of it upon the property. It was determined by the trial court to be void, and so declared by the judgment.

A question is raised about the disposition of the proceeds received by the sheriff of the Van Camp accounts. As no attachment, other than that of Keeler & Salisbury, was levied upon them, it is not seen that any creditor, other than they, obtained any lien upon the accounts by them attached. Those upon which their attachment was levied produced only $130.04;" which amount was sufficient to pay their judgment of $119.98, and they were entitled to its payment from the proceeds of the accounts upon which their attachment was levied. The assignment by Van Camp to Keeler & Salisbury of the proceeds of other of his accounts collected by the sheriff was not effectual to transfer to them title of such proceeds, to the prejudice of the attaching creditors. When payment of the accounts was made by the debtors to the sheriff, the amount so received by him became charged with the lien of the attachments in his hands, in the order of the delivery of them to him. In view of the circumstances, the conclusion of the trial court that the sheriff is not chargeable with any greater rate or amount of interest on the fund than that realized by him from it was fairly justified, and such conclusion is sustained. The defendant Orleans County National Bank, having recovered a judgment against Van Camp, September 14, 1889, by default, upon the service of the summons by publication, after-wards, on November 16th, commenced against him an action upon the same claim, by the personal service upon him, in this state, of the summons and complaint, and on December 7, 1889, recovered a judgment therein by default. It does not appear that any of the parties, other than the judgment debtor, could be prejudiced by the last-mentioned judgment; and whether or not it was, by reason of the former judgment for the same cause, rendered invalid, is a question which none of the parties, other than he, could legitimately raise for consideration. He does not seek to attack it in this action. If the first judgment was effectual to charge the defendant in personam, the other is useless. But if, from any cause, it is not so, it may properly stand. Therefore, without considering the question upon the merits, the conclusion of the trial court that the judgment was void, as well as the judgment to that effect, is not sustained.

Those views lead to the conclusion that the payment by the defendant Searle, as sheriff, to the defendant Bruner, of $96.65, was made without due authority, and he was not justified in making it; that the defendants Keeler & Salisbury were entitled to priority in *768payment upon their judgment, of or from the proceeds, amounting to $130.04, of the accounts upon which their attachment was levied; and thht the second judgment above mentioned, of the Orleans County National Bank against Van Camp, is here treated as valid. And so far as, by the judgment appealed from, it is otherwise determined, it should be reversed, and in other respects affirmed. The judgment should be thus modified without costs to any party. All concur.