#### MRS. ELIZA J. MITCHELL v. JOHN R. SIMS, Sheriff of Person County.

(Decided April 11, 1899).

Evidence — Claim and Delivery — Attachment—The Code, Section 822.

1. Under section 322 of The Code there is no limitation or restriction put upon a plaintiff who seeks to recover personal property and have the same immediately delivered to him, except that the same has not been taken for tax. assessment or fines pursuant to a statute, or seized under an execution or attachment against the property of plaintiff, or if so seized, it is by statute exempt from such seizure.

2. As between a judgment creditor and the defendant, the latter will not be allowed to obstruct the execution by writ of replevin — but in the case of a third person, the right of' property is an open guestion, and there can be no reason why a third party, alleging ownership, should not have the same remedy against one wrongdoer as against another.

3. In the law regulating attachments under The Code, the creditor has no right to seize property in the hands of an officer under process of the Court, or to take it out of the possession of such officer, as is given to claimants for the recovery of personal property under the provisions óf The Code in claim and delivery proceedings.

4. Declarations of a husband, in possession of personal property, as to the right of his wife thereto, is competent evidence in a controversy between her and a party claiming under him.

Claim: AND Delivery proceedings for a mule, tried before Timberlalce, J., at August Term, 1898, of PersoN Superior Court.

It was in evidence tbat tbe plaintiff was tbe owner of a borse, wbicb ber husband, now dead, swapped off for tbe mule incontroversyjustbeforebeleft tbe State. Along witb tbeborse *412be traded some articles of property of bis own for tbe mule, and got $40 to boot. Upon bearing of tbe trade, after ber husband left, plaintiff ratified tbe trade and claimed tbe mule. ITis creditors attached tbe mule after be left, and this action was brought by ber for its recovery from tbe Sheriff, in whose custody it was, and she got possession. On tbe trial plaintiff offered to prove by tbe party who traded the mule to her husband, that ber husband directed him to deliver tbe mule to ber, unless be could sell it for 60, and if be could, to pay her tbe money. Upon objection by defendant bis Honor excluded tbe evidence. Plaintiff excepted.

Tbe defendant claimed tbe mule under tbe attachment until taken from him by plaintiff, under claim and delivery proceedings in this action, and be insisted that this action could not be maintained against him for tbe reason that when seized by tbe plaintiff the mule wras in custodia legis.

His Honor adjudged that this action could not be maintained, rendered judgment against tbe plaintiff, and restored tbe mule to defendant. Tbe plaintiff excepted and appealed.

Messrs. Kitchen & Kitchen and J. W. Graham, for plaintiff (appellant).

Messrs. Boone & Bryant, for defendant.

MONTGOMERY, J.

The husband of tbe plaintiff, after be bad left bis home and was on tbe eve of leaving tbe State, exchanged a horse, and some other personal property admitted to be his own, with Satterfield and Lunsford, for a mule and $40 to boot. Tbe mule was levied on by tbe defendant as Sheriff of Person County under attachment proceedings sued out by tbe creditors of tbe husband. Afterwards this action was begun by tbe plaintiff against tbe defendant for tbe recovery of tbe mule, she alleging that tbe same was ber prop*413erty. On tbe trial sbe testified tbat tbe horse was ber property, and tbat when sbe beard of tbe trade by tbe bnsband witb Satterfield and Lunsford, sbe notified them and claimed tbe mule. Sbe offered to prove by botb Satterfield and Lunsford tbat at tbe time of tbe exchange tbe husband directed them to send the mule to the plaintiff unless it could be sold for $60, and in tbat case to send tbe $60 to tbe plaintiff. His Honor refused to admit tbe evidence. We think it competent and tbat it should have been received. The husband was in possession of tbe property, and what be said at the time of tbe exchange was some evidence tbat tbe plaintiff bad some right or interest in tbe property and was entitled to tbe possession of it. Tbe defendant in bis answer averred tbat be bad held tbe mule under tbe levy of attachment until it was taken from him by the plaintiff under tbe proceedings in this action, and be insisted tbat this action could not be maintained by tbe plaintiff, for tbe reason tbat at the time when it was seized by tbe plaintiff it was in custodia legis. This case, then, presents again for consideration tbe construction of tbe chapter of Tbe Code (Claim and Delivery of Personal Property) in respect to the cases that come within its operation.

In tbe case of Jones v. Ward, 77 N. C., 337, this Court held tbat tbe words of tbe statute, Tbe Code, section 322, were as broad as they well could be, and included any case that could be imagined, witb tbe specified exceptions in subdivision 4 of tbat section. In tbat case there bad been a levy-upon personal property by a Constable, and be bad taken tbe same under an execution properly issued to him. Tbe plaintiff, not tbe judgment debtor in tbe execution, instituted against tbe Constable an action for tbe possession of tbe property levied upon, and sought and bad tbe immediate delivery of it to him. This Court held tbat tbe action could be main*414tained; that tbe statute would be a prohibition against a debtor in an execution whose property had been seized under execution, from claiming the same by a suit for its recovery against the officer who had made the levy, but that a third person would have the right to do so.- In the case of creditor and debtor, the Court said in that case: “The creditor has established his right to the debt by judgment, and the defendant is not allowed to obstruct the execution by writ'of reple-vin.” In the case of a third person, the Court said: “The right to the property is an open question, and there can be no reason why a third party, alleging ownership, should not have the same remedy against one wrongdoer as against another.” The Court further said on this point, in that case, that that part of the affidavit which the plaintiff was required to make, viz.: “That the property was not seized under an execution or attachment against the property of the plaintiff, or, if so seized, that it is exempt by statute,” applies to an action by the defendant in an execution, and leaves the case of a third person to come under its broad terms.

The case of McLeod v. Oates, 30 N. C., 387, seems to be at variance with the case of Jones v. Ward, supra, but when carefully examined it will be found not to be so. In McLeod v. Oates the action was brought under Chapter 111 of the Ee-vised Statutes, having been for the replevy of a slave levied on by a Constable under execution, and the Court said that “the old authorities all agree that goods taken in execution from a Court of Eecord are not repleviable” and held to that view of the law. But the Court said in Jones v. Ward, that the case of McLeod v. Oates was not an authority on the construction of The Code of Civil Procedure, “which professed to establish a new order of things, and must be judged of by its own language.” The language of the Eevised Statutes, Chapter 101, in reference to the scope of the remedy therein *415provided, was, “that writs of replevin for slaves shall be held and deemed to be sustainable against persons in possession of snob slaves in all cases where actions of detinue or trover w.ere now proper.” The remedy there was restricted to cases where the action of detinue or trover was proper, and, as the law was then understood, those actions did not apply where the property was in the hands of an officer under the process of the Courts. But under section 322 of The Code there is no limitation or restriction put upon the plaintiff, who seeks to recover personal property and have the same immediately delivered to him, except that the same has not been taken for tax, assessment or fines pursuant to a statute, or seized under an execution or attachment against the property of the plaintiff, or, if seized, that it is by statute exempt from such seizure. The language of The Code is immensely broader in its scope than the language of the Revised Statutes on the subject in hand.

The case before the Court does not conflict with what was decided in Williamson v. Neally, 119 N. C., 339. In that case the Sheriff, who already held the property under an order made in claim and delivery proceedings, undertook to levy upon it under a warrant of attachment in favor of a creditor against the defendant in the claim and delivery proceedings. The Court held that the levy under the attachment was invalid because by such a proceeding the process in the ■claim and delivery proceeding could not be interfered with, and that the property had to be delivered to the claimant under the order of the Court to that effect. In other words, in 'actions for the recovery of personal property when the immediate delivery of the property is sought, the broad language of the statute gives the right to the claimant, upon his executing the bond required by law, to take the property from the possession of any *416person, even from an officer of tbe law, unless it bas been taken for tax, assessment or fine pursuant to a statute, or seized under an execution or attachment against tbe property of tbe plaintiff.... even tbougb sucb a course results in tbe obstruction of tbe process of tbe Courts to tbe extent of having tried tbe title to personal property claimed by a third person, where tbe same bas been levied upon or seized under execution or attachment not against tbe property of tbe plaintiff. But in the law regulating attachments under Tbe Code, tbe creditor bas no right or privilege given to him to seize property in tbe bands of an officer under tbe process of tbe Courts, or to take it out of tbe bands of sucb officer, as is given to claimants for tbe recovery of personal property under tbe provisions of Tbe Code.

There was error in tbe trial below, for which there must be a new trial.