#### William A. Beaird, Appellant, v. Mary Foreman and others, Appellees.

APPEAL FROM ST. CLAIR.

If an officer acts illegally or oppressively in executing process, the remedy against him is at law, and a court of equity can not interfere.

The defendant in an execution, who desires a levy upon any particular tract of land, should exhibit to the officer all the evidences of his title to it. The officer is not bound to take any loose memorandum of title which the defendant may show him.

Where the plaintiff in an execution, and the officer serving it, are made parties to a bill for an injunction by the defendant, if they do not participate in the acts of the officer in making the levy, &c., they need not answer the bill; the answer of the officer is sufficient to authorize the court to proceed and make a decree.

As a general rule, a court of chancery will not adjudge executions regular on their face, void, at least until an attempt is made in the tribunal from which they issued, to obtain relief against them.

The defendant, together with Jonathan Lynch, Mary Ann Chartrand, John Norton and Thomas Baldwin, who were judgment creditors of the appellant, issued executions upon their several judgments against the appellant who was then sheriff of St. Clair county, and placed them in the hands of Pulliam, the coroner of that county, to be executed. Pulliam, by direction of the defendants, levied said executions upon the personal property of Beaird, but before the sale, Beaird obtained an injunction from the judge of the fifth judicial circuit, to stay all proceedings on said executions, setting forth in his bill, that he had real estate unincumbered, in Madison, St. Clair and Randolph counties, which ought to be first taken in execution and sold, before resort could be had to his personal property, and relied on the proviso in the 9th section of the “act concerning judgments and executions,” approved Jan. 17, 1825, which declares, “that the plaintiff in any execution, may elect on what property he will have the same levied, except the land on which the defendant resides, and his personal property, which shall be last taken in execution.” Pulliam, the coroner, alone answered the bill, denying that Beaird had any title to the lands specified by him as lying in *386St. Glair county, except Ms homestead, and that they were mortgaged, prior to the judgments on which these executions issued, to the State Bank, and alleging that Beaird never surrendered to him the lands in Madison and Randolph, or the title papers to the same, to satisfy said executions, and that all his lands lying in St. Clair county, except his homestead, had been previously sold on executions against him. On' filing this answer, the defendants moved to dissolve the injunction and dismiss the bill. The court dissolved the injunction, but refused to dismiss the bill, and thereupon, by consent, the bill was dismissed and an appeal taken by Beaird to the supreme court. The circuit court awarded damages in favor of the appellees, though some of them were not served with process, had not appeared or answered. Some exceptions were also taken to the validity of the executions in virtue of which the levy complained of was made.

Opinion of the Court by

Justice Smith.

The points presented for the consideration of this court in the present case are, that the circuit court erred in dissolving the injunction:

1. - Because a part of the defendants were never served with process, and another portion never answered; and

2. Because the executions were not shown to the defendant in the court below, and that the same are void, and conferred no authority to" the coroner to proceed under them.

To understand these objections fully, it may be necessary to recapitulate the objects of the bill.

The complainant sought to enjoin perpetually, all the defendants to the bill, who were several judgment creditors, except the coroner, in their separate and individual capacities, from proceeding to collect their several judgments by execution, because he alleges that, under the laws of this state, the property so taken in execution by the coroner was not liable to be sold, being personal property. The authority of the coroner is not disputed as such coroner, but that the appellant having real estate sufficient to satisfy the executions in his hands, it was the duty of the coroner to have levied on that, and sold it first, before he could resort to the personal estate. This ground was assumed in the argument, though it will be perceived it is not assigned as one of the causes of error, nor could it have been sustainable, when it is remembered that, if there had been any oppressive or illegal act of the coroner in the levy on the property, the circuit court possessed sufficient power to stay the proceedings under the execution and remedy the evil if one had existed. That this power is a necessary incident to all courts to prevent *387abuses of process, will not be denied, and that it is the proper mode to which to resort, rather than a court of equity, seems equally certain. The complainant having then a full and perfect remedy at law, the bill could not properly be sustainable for that reason.

But, on examining the answer of the coroner, it is clearly shown, that all the real estate in St. Clair county of the complainant, except the tract on which he resided, had been sold previously by the coroner upon other executions, or was subject to incumbrance by mortgage, and that the complainant neither offered the lands on which he resided, nor did he exhibit his title deeds, or manifest any desire to deliver any estate whatever, either real or personal, to be sold in satisfaction of the executions, previous to the levy made by the coroner on his personal estate. Without then deciding whether the defendant in a judgment, or the plaintiff, has the right of selecting the personal property, or the lands upon which the defendant resides under an execution issued under such judgment, it will be apparent that the complainant has not shown that at any time before the levy upon Ms personal estate, or even at that time, did he offer his real estate to be sold upon the executions of the defendants.

It will surely not be contended that an officer is bound to take any loose memorandum which a defendant may offer as evidence of his title to lands, and thereupon expose the same for sale. Every reasonable evidence of title should be exhibited, and the officer satisfied that he was not proceeding to expose to sale the property of another person before the exemption could be claimed for the personal estate if that exemption be allowed by law; but which is not now decided, because the complainant has not shown himself entitled thereto, even if the statute be so construed. There is, then, no ground of equity disclosed, by which the complainant should be entitled to relief on this part of the case.

The error relied on in the first point, is readily met, when it is seen that the coroner could alone answer to the allegations of the bill as to the manner of the levy, and the property taken, which is the sole ground relied on for the equitable interposition of the court. The judgment creditors were entire strangers to the acts of the coroner, could not in any way be supposed to have participated therein, and if called on to answer as to that part of the bill, could only have avowed that the coroner had done what he distinctly states he has done.* Their answer or appearance would then have *388been wholly unimportant for the decision of the question before the court on the motion to dissolve the injunction, and for that reason, the objection fails entirely as a ground of error. The coroner’s answer to the main allegations of the bill, relied on for relief, fully meets those allegations, negativing some of the most important ones, and particularly as to the time when the levy was made. The second ground, that of not showing the executions, and the mode of levying them are already anticipated by the remarks on the power of the court below on motion, to have remedied all irregularity, if any existed; and indeed, if the process of execution was void, or used oppressively for malicious purposes, the officer would no doubt be liable for whatever injury might be sustained.

McRoberts, for appellant.

Blackwell, for appellees.

If, however, the executions were void, and conferred no authority to the coroner to proceed under them, it is certain that all the parties concerned would be answerable as trespassers. But it is not by any means certain that this court would proceed to adjudge executions apparently regular upon their face, void, at least until an effort had been made in the tribunal from which they issued, for relief, in conformity to the views herein already expressed on that point. No attempt has been made to the law side of the circuit court to set aside or quash those executions as having been irregularly issued, or as being void on their face, and it will not be denied if either exist, that relief at law by making such application also exists.

The bill having been dismissed by the consent of parties, after the dissolution of the injunction, no question is now made, whether the dissolving an injunction is a mere interlocutory order from which no appeal or writ of error lies.

Upon a full view of all the grounds presented in this case, it is the opinion of the court that there are no sufficient equitable grounds of relief disclosed by the complainant to entitle him to the interposition of a court of equity, and that the circuit court did not err in dissolving the injunction and dismissing the bill. The judgment of the circuit court is, therefore, affirmed, with costs. (1)

Judgment affirmed.-

*

Ante, Reynolds v. Mitchell and others, 177.

(1)

See note to Greenup v. Brown, ante, 252, and More et al. v. Bagley et al., ante, 94. Dunlap v. Berry, 4 Scam., 327.

The statute now in force, prescribing what property shall be first taken in execution, is nearly identical with that of 1815. Purple's statutes, 643, sec. 9,