Hibbard v. Weil & Kahn. cutions, the amount made shall be distributed to the several creditors in proportion to the amount of their respective demands. In all other cases, the writ of execution first delivered to the officer shall be first satisfied." The above seem to be the only cases in which the statute authorizes the apportionment of money arising from the sale of a debtor's land on execution, pro rata to judgment creditors. The one is where two or more executions against the same debtor shall be issued during the term at which the judgments were rendered, or within ten days thereafter; the other when two or more executions against the same debtor are issued and placed in the hands of the officer on the same day. However, in the latter case it is provided that the law shall not be so construed as to affect any preferable lien which one or more of the judgments on which execution issued, may have on the lands of the judgment debtor. In the case at bar, no one of the executions was issued during the term at which the judgments were rendered, nor within ten days thereafter; and therefore, the questions raised by the contest in this case do not come within the above provisions of the statute. The clause, "in all other cases, the writ of execution first delivered to the officer shall be first satisfied,"-must, in order to harmonize it with other parts of the statute, be construed as relating to executions in the hands of the offi cer at the time of the sale of the lands of the judgment debtor. Such seems clearly to be the legislative intent, as well as the only reasonable construction of the statute; for, by section five hundred and eleven, the officer to whom the writ of execution is directed, is required to return the same to the court to which it is returnable within sixty days from the date thereof; and the proposition will not be questioned, that when the officer makes return of a writ of execution, with or without a levy thereon, it passes from his hands, and he has no author Hibbard v. Weil & Kahn. ity to apply in satisfaction or in part payment of such execution, any money made by him on the sale of property upon executions subsequently placed in his hands against the same debtor. Instead of so applying any money made by sale of property, upon such subsequent executions, section five hundred and seven provides, that "if there shall be in the hands of the sheriff or other officer more money than is sufficient to satisfy the writs of execution with interest and costs, such officer shall on demand pay the balance to the defendant in execution, or to his legal representatives;" and section five hundred and thirteen provides, that if such officer "shall neglect or refuse on demand made by the defendant, his agent, or attorney of record, to pay over all moneys by him received for any sale made, beyond what is sufficient to satisfy the writ or writs of execution," he shall be liable to be amerced in a certain amount for the use of the defendant. The distribution and payment of money raised on the sale of a debtor's property upon execution, is strictly a legal proceeding and, under our code, there is no authority in the court to appropriate such money to any judgment or judgments other than those on which executions are in the hands of the officer at the time of such sale. The sale vests in the purchaser all the right of the judgment debtor to the property, but that right is subject to all existing liens which in their order of date are prior to the lien of the judgment or judgments on which the execution sale is made. It is true the records show that Hibbard and Spencer and the St. Joseph Manufacturing Company caused executions on their respective judgments to be taken out and levied on the lands of the defendants Horton and Jenks, within one year next after the rendition of their several judgments, and that Weil and Kahn and Wyeth and Co., did not issue executions on their several judg Hibbard v. Weil & Kahn ments until after the expiration of one year next after the rendition of their several judgments; but it is not necessary to consider the point made under this state of facts, for by act of February 27, 1873, it is provided, that "no judgment heretofore rendered, or which hereafter may be rendered, on which execution shall not have been taken out and levied before the expiration of five years next after its rendition, shall operate as a lien upon the estate of any debtor, to the preference of any other bona fide judgment creditor." General Statutes, 613. This act includes all judgments, whether prior or subsequent to its passage; it preserves the lien of a judg ment for the period of five years from the time of its rendition without any regard whatever to the issuance and levy of an execution. Hence it is sufficient if the execution is taken out and levied at any time before the expiration of five years next after the rendition of the judgment. The case at bar comes within the operation of this amended law, and therefore the fact that in the one case the executions were issued within one year, and in the other they were not issued until after the expiration of one year next after the rendition of the several judg ments, does not in any way affect the rights of the parties in this case. In any view of the case, under our statutory laws relating to judgments and executions, I am of opinion that there is no error in the final order made in the case by the district court, and therefore the same is AFFIRMED. Eaton v. Ryan. 5 47 15 363 15 364 17 535 GEORGE P. EATON, AND FREDERICK FUNKE, PLAINTIFFS 1. Homestead. The judgment of a probate court becomes a lien 2. 3. 4. But such lien cannot be enforced by execution while the homestead is owned and occupied by the judgment debtor. A sale of such homestead by the debtor is a relinquishment of the protection afforded by the homestead act, and renders the lien capable of immediate enforcement by execution. -: SALE OF, UPON EXECUTION A homestead although composed of different parcels taken from distinct lots, but adjoining each other, may be sold as one tract. ERROR to the district court for Lancaster county, argued upon the following stipulation of facts: On the eleventh day of December, 1874, the defendant in error recovered a judgment, in the probate court in Lancaster county, for the sum of two hundred and sixty-one dollars and thirty-five cents, against Eaton and others. On the eighth day of December, 1874, the defendant in error caused a transcript of the judgment to be filed in the office of the clerk of the district court of said county. At the date of the filing of this transcript Eaton was the owner of two feet off the east side of lot ten, and twenty feet off the west side of lot eleven, in block one hundred and twenty-one, in the city of Lincoln, in said county, and was at said time occupying said premises as a homestead. On the fifth day of January, 1875, Eaton while occupying said premises as a homestead, sold said premises for full value, to the said Funke and continued to occupy until Funke moved in. On the twentieth day of March, 1875, the defendant 17 624 17 629 5 47 54 219 Eaton v. Ryan. in error caused an execution to be issued and the premises above described were sold by the sheriff. The sheriff's return does not show that the two pieces of property were appraised and sold separately. It is also agreed that the premises sold were appraised and advertised and sold for two-thirds their appraised value. Defendant in error filed a motion for confirmation of sale and Funke filed exceptions showing the above facts. Sale was confirmed and Funke and Eaton excepted. Mason & Whedon, for plaintiffs in error, cited Green v. Marks, 25 Ill., 221. McDonald v. Crandall, 43 Ill., 231. Lamb v. Shays, 14 Iowa, 567. Cummins v. Long, 16 Iowa, 41. Morris v. Ward, 5 Kan., 239. Ackley v. Chamberlain, 16 Cal., 181. Laughlin v. Schuyler, 1 Neb., 409. Brown, England & Brown, for defendant in error, cited State Bank v. Carson, 4 Neb., 498. Hoyt v. Howe, 3 Wis., 752. General Statutes, 616. Kiser v. Ruddick, Ind., 185. Lessee 8 Blackf., 382. Wright v. Yetts, 30 LAKE, CH. J. I. Upon the filing of the transcript of the judgment rendered by the probate court, in the office of the clerk of the district court, and its entry upon the judgment record, it became a lien upon the premises in question, notwithstanding they were then occupied by the judgment debtor as his homestead. A judgment so entered has precisely the same effect, and creates the same lien upon the real estate of the judgment debtor, as a judg ment of the district court would have. General Statutes, 267, section 18. But this lien could not have been enforced by a sale of the premises under execution, so |