#### DAVID LENTZ & AL. EXECUTORS &c. vs. MAXWELL CHAMBERS AND OTHERS.

If a sheriff sell, under an execution, property, which does not belong to the defendant in the execution, and the plaintiff in the execution, with aknowl-edge that the money was so wrongfully raised, receives it from the sheriff, he is guilty of the tort, equally with the sheriff.

But where the real owner of the property is present at the sale and does not object, but acquiesces in it, he.cannot support an action of tort against either the sheriff or the plaintiff in the execution, who receives the amount raised by the sale.

Appeal from the Superior Court of Law of Rowan County, at the'Spring Term, 1845, his Honor Judge Bailey presiding.

This was an action of trover, brought to recover the value of a negro woman, sold by the sheriff of Rowan county by virtue of executions issuing in favor of the present defendants against the executors of one Hileck. It was in proof, that various judgments had been obtained against the executors of Hileck by the defendants and other creditors — that executions were issued thereupon and placed in the hands of the sheriff by the clerk of the court, without any special instructions from the plaintiffs in those executions — that the executions were levied upon the negro in controversy, together with other negroes — that the property levied upon was sold, and the money arising from the sale paid to the defendants by the sheriff in satisfaction of their executions. The negro in controversy had been the property of the said Hileck, and was in his possession at his death. A short time after his death, his family entered into an arrangement, by which they agreed to divide the property among them, and each to pay a certain proportion of the debts of the estate. The widow of Hileck was a party to this arrangement, and the negro in question fell to her share, and she contracted to pay one-sixth part of the debts, which were then supposed to.amount to about eigh*588teen hundred dollars. In pursuance of this agreement, a bill of sale was executed to the widow by all the children, and also by the executor of Hileck. The widow afterwards inter- , , , married with the plaintiff's testator, who took the negro into his possession, and had her in possession at the time of the levy. It was further in evidence, that the estate of’ Hileck Was much more indebted than had been supposed at the time of the family arrangement referred to, and was in fact insolvent. It was also in proofj that on the day of sale, the negro was brought to the place of sale by the plaintiff’s testator, that he was present and made no objection to the sale, and that he endeavored to borrow money, as he declared, with a, view to purchase her. A witness also proved, that he believed the defendants were present at the sale, but he was not certain— that they received the money for their debt, knowing that it was raised by the sale of the negro in question — that the sale by the children and executor to the wife of the plaintiff’s testator, was before the commencement of the suits against the executors of Hileck. In the action against (he executors of Hileck, in favor of the defendants, there was an admission of assets.

The defendant’s counsel moved the court to nonsuit the plaintiffs, on the ground that there was no evidence, on which the defendants could be charged in this form of action,- and, secondly, that as the plaintiff’s testator brought the negro to the sheriff on the day of sale, was present when she was sold, and made no objection, they were estopped from setting up any title. The court charged the jury, that there was evidence, from which they had aright to infer a conversion, and that there was no estoppel. The jury found a verdict for the plaintiffs, and from the judgment rendered thereon, the defendants appealed.

Boyden for the plaintiffs.

Alexander and Osborne for the defendants.

Daniel, J.

In this case it is admitted that the sate of the slave in controversy, by the executors of Hileck to'the widow *589 was bona» fide. When she afterwards married Lentz, the slave, by force of law, became his property. The judgments. which the present defendants and others obtained against Hi: leek’s executors, were all taken de bonis testatoris. The Sheriff, therefore, had no right, under the executions issued on the said judgments, to levy them on the slave of Lentz.— And as he did, and afterwards sold the slave under the executions, he was guilty of a tort and conversion, if he had no licence from the owner of the slave to do the act. And, if the present defendants received the money, with a knowledge that it was so wrongfully raised out of the property of Lentz for their benefit, it was evidence of their assent to the tort of the officer, and would make them also guilty of the tort by relation. Sewell on Sheriffs, 248, 1 Mauh. & Sel. 583, 599, Stra. 996. Brown on actions at law, 110,113. And on this ground we suppose the judge considered the case to rest. But the evidence furthermore shewed, that, after the levy, Lentz con-tinned' in possession of the slave; and, on the day of sale, he brought her to the place of sale, and was present and made no objection to the sale ; and that he, furthermore, then endeavored to borrow money, as he declared, with a view to purchase the slave himself. It seems to us that the bare levy by the Sheriff, and then leaving the slave in the possession of the owner did not amount to a tortious conversion. And, as the subsequent sale of the slave was made by the consent of the owner and in his presence, that act was not such a conversion, as to enable the owner to maintain an action of trover against the Sheriff; and much less against the present defendants for receiving the purchase money, although they knew that the' money was the price of the said negro. This is not upon the ground of. his presence being an estoppel, but that his conduct amounted to an assent to the Sheriff’s acts. It is probable)when the testator’s debts were found to be so much larger than was expected, and so the purchase by the widow turned out to be a hard bargain, her second husband was willing to give up the negro to be sold under the execution. At all events he gave the Sheriff every reason so to think; and, after *590concurring in the sale as he did, he cannot treat it as a wrong'* conVersion. The judge refused to nonsuit the plaintiffs or to charge in favor of the defendants on this evidence. We think the judgment must be reversed and a new trial granted*

Per Curiam, Judgment reversed and a venire de novo awarded.