delivered the opinion of the court.

• . The gist of plaintiff’s right to recover is that he had levied on the com. His return on the execution was only prima-facie evidence in his favor of the levy. Freem. on Ex., sec. 366.

. It was admissible for defendants to deny the levy, for that Is the foundation of plaintiff’s right to recover against them. Ib., sec. 268. If there was no valid levy, he could not maintain his action.

The evidence as to the levy is contradictory. The plaintiff sustained it, and Staggs, the defendant in the execution, denied it. The jury were properly instructed on all points, and we will not disturb their verdict. The affidavit in support of the motion for a new trial presents no ground for it. Vigilantibus non dormientibus leges subveniunt.

The defendants claimed the corn sued for by purchase from Staggs. If the corn had been levied on by the plaintiff, they are not entitled to hold it against him. If it had not been levied on, although claimed by plaintiff to have been, the plaintiff has no right to recover in this action. It was held *211in the court below that the judgment had priority over the deed of trust, and the case must have turned, and properly, on whether or not the plaintiff had levied on the corn. The court correctly instructed the jury in the third instruction for plaintiff, as to a levy, and they must have concluded that there was not a levy. The second instruction for plaintiff was properly refused, and the first for defendants, being the only one objected to, was properly given.

Judgment affirmed.