The Opinion of the Court was delivered by
In April 1839, Landon recovered a judgment against Evans for $691-28. An execution was issued thereon, on the 29th day of January, 1841, and levied on lots ninety six (96,) and one hundred and thirty, (130,) in the town of Carrollton. Three appraisers were sworn to appraise the lots. They proceeded to appraise lot one hundred and thirty, (130,) but did not agree, one valuing it at $1000, one at $1500, and the other at $1700. In consequence of this disagreement, the sheriff returned the execution. On the 7th of July, 1841, a second execution was issued, and levied on the same property. Three appraisers were sworn to appraise lot one hundred and thirty, (130,) two of whom valued it at $1000; the other did not consider it worth that much. This execution was returned without any further proceedings under it.
At the April term 1843, the Circuit Court, on the motion of the plaintiff, set aside the levy, and directed a new execution to issue. In support of the motion, an affidavit of the plaintiff was read, stating that the first execution was issued and levied without his knowledge or consent, so that he had no opportunity of selecting other real estate of the defendant on which to make the levy; and that the defendant had other real estate subject to execution. The allowance of the motion is assigned for error, by Evans, who has prosecuted an appeal to this Court.
The proceedings on the executions were had under the ic«Act regulating the sale of properly,” approved February 27th, 1841. By the provisions of that Act, the plaintiff may elect on,what property of the defendant he will have his ex*309ecution levied, except the land on which he resides and his personal property, which shall be last taken on execution. The property levied on, is to be appraised by three householders, and cannot be sold for less than two thirds of the appraisement. In order to constitute a valid appraisement, all of the appraisers must agree. There being no such appraisement in this case, the sheriff could not proceed to make sale of the premises. It appears that the plaintiff had no opportunity of electing on what property he would have his execution levied, and that two ineffectual attempts were made to procure an appraisement of the property actually levied on by the sheriff. Under such circumstances, we cannot say that the Circuit Court decided erroneously in discharging the levy, and in authorizing another execution to issue, which might be levied on other property of the defendant. It was but enabling the plaintiff to exercise the right of election conferred on him by the statute, and could work no material injury to the defendant. The levy on real estate does not deprive the defendant of the use of his property, by transferring the possession to the sheriff, as in the case of a levy on personal próperty.
The judgment of the Circuit Court is affirmed, with costs.