#### Jarret Garner, Plaintiff in Error, v. M. C. Willis, Defendant in Error.

ERROR TO GALLATIN.

The oldest execution first delivered to the officer, binds the personal property, though issued upon a junior judgment. An execution returned “ not levied,” is functus officio.

If a purchaser, at a sheriff’s or constable’s sale, takes possession of the property purchased, without the consent and against the command of the officer, though the purchaser be the plaintiff, in the jfere facias under which the sale is made, he is a trespasser.

Opinion of the Court by

Chief Justice Wilson.

This is an action of trespass, brought by Willis against Garner, and the following facts are submitted by the parties, for the opinion of the court as to the law thereon, viz.:

There were two judgments on a justice’s docket against John Huston, one in favor of Wight, the other in favor of Garner. Wight, the plaintiff in the oldest judgment, sued out an execution which was returned “ not leviedGarner then took out an execution on his judgment, which was levied by the defendant in error, Willis, who was a constable, on the horse of Huston, after which, Wight took out a second execution upon his judgment, which Willis also levied on the same horse, and sold him under both. Garner became the purchaser, and took possession of the horse without the consent and against the command of Willis. Now, it is agreed, that if Garner’s execution should, in law, be first satisfied, and also that Garner was guilty of a trespass in taking the horse, then judgment is to be given against him for nominal damages; but if the court should be of opinion that Wight’s *369execution bound the property, then judgment is to be given for its value and costs. The judgment of the court below was against Garner, and for the amount of Wight’s execution. To reverse this judgment, this writ of error is prosecuted.

In deciding this case, the court below seems to have gone upon the ground that the oldest execution created a lien upon the defendant’s personal estate, and that the lien was kept alive, and extended to a second execution issued upon the same judgment after the return of the first, and in exclusion to Garner’s execution issued after the return of Wight’s.

This position is not maintainable, either upon the principles of the common law, or the provisions of the statute. At common law, writs of execution had relation to their teste, and subjected the estate of the defendant from that time to be levied on and sold, wherever it might be found, between different plaintiffs against the same defendant; however, the law created no lien in favor of one to the prejudice of the other, on account of the age of their executions, but it imposed an obligation on the officer to act impartially, and of two executions in hand at the same time, to satisfy that first which was first received. If he departs from this rule, and levies the last execution first, he does it at his peril, and though a sale under that would be legal as respects purchasers, the officer would be responsible to the plaintiff in the first execution.

The statute of 1825, regulating judgments and executions, and which is the only one applicable to this case, provides,* “ that no writ of execution shall bind the goods, &c., of any person against whom such writ shall be issued, but from the time such writ shall be delivered to the sheriff or other officer.”

This statute changes the common law only so far as to limit the commencement of the binding efficacy of the executions to the time of their delivery to the officer; it was certainly not intended to give them a more extensive operation than they had before its passage. Such is the construction given by the courts of England and Kentucky to a similar statute. They have repeatedly decided that an execution, after the expiration of the time when by law it should be returned, is officially dead, and that its delivery to an officer in the first instance, does not create a lien which can be preserved and continued to a subsequent execution issued after the return of the first. 4 Bibb, 29. Salkeld, 320.

*370 Gatewood, for appellant.

Eddy, for appellee.

Upon this point the court below erred. The next inquiry is, as to the liability of Garner to an action of trespass, for taking the property out of the possession of the constable against his will, The general principle, that a sheriff or constable who seizes goods on an execution, has a special property in them, and may maintain trover or trespass against a wrong-doer, is well settled, and there are no circumstances in this case to take it out of the operation of this rule. Garner, being the plaintiff in one of the executions under which the horse was sold, gave him no interest in the property ; his only title to the possession was the sheriff’s sale, and his right under that was not complete until the terms of sale were complied with fiy the payment of the purchase money, or the delivery of the property to him by the officer. The sale being under both Wight’s and Garner’s executions, the constable might have applied the proceeds to the discharge of either, and his liability for a wrong application of it, affords no justification to Garner. It may also be observed that officers are entitled to retain their fees ; but the benefit of this principle would be defeated if a plaintiff in an execution, who becomes a purchaser, was entitled to more favor than a stranger. Under this view of the case, I am of opinion that Garner’s execution should have been first satisfied, and also, that he was guilty of a trespass in taking the property against the consent of the constable. The judgment of the circuit court is therefore reversed, and judgment rendered against the appellant for one cent damages and costs below, and that the appellant recover the costs in this court. (1)

Judgment reversed.

*

Rev. laws of 1829, page 86, sect. 6.

(1)

Where two or more writs of fi. fa. are delivered at different times, either to the same or different officers, and no sale is actually made of the defendant’s goods, the execution first delivered must have the priority, though the first seizure may have been made on a subsequent execution. But where the goods are actually sold by virtue of a levy made under a junior execution, the sale will be good, and the property can not afterwards be taken from the purchaser by the senior execution. The only remedy of the party injured is against the officer. Rogers v. Dickey, 1 Gilm., 636.

An execution becomes a lien on the personal property of the defendant from the time it is indorsed by the constable, and no subsequent sale by the defendant can affect the rights of the plaintiff. Marshall v. Cunningham, 13 Ill., 20.

If a defendant dies between the teste of an execution and its delivery to the sheriff, the sheriff can not proceed to make a levy under it. People v. Bradley, 17 Ill., 485.

An execution issued after the death of the judgment debtor, is void, and if a Sheriff sells land under it, his deed is a nullity. Laflin v. Herrington, 16 Ill., 301.

*371The death of a defendant in execution, after its delivery to the sheriff, but before a levy under it by him, will not prevent that officer from proceeding to levy and sell. Dodge v. Mack, 22 Ill., 93.

A title, acquired under an execution issued after the death of the defendant, is not prima facie void; it becomes so upon proof of the fact of the death. Finch et al. v. Martin et al., 19 Ill., 105.

A return of an officer to an execution is not simply his indorsement upon the process, but is the actual placing it in the office from which it issued. Until then he may change the indorsement, and afterwards, only by permission of the court. Nelson et al. v. Cook, 19 Ill., 440.