#### A. R. HOMESLEY v. STEPHEN HOGUE.

Only such estate as a debtor has, passes by virtue of an execution sale.

The owner of an ultimate estate in chattels, cannot maintain an action against a sheriff, who has an execution against the owner of a particular interest, for selling it, although he professes to soil the entire property in such chattels.

This was an action of tbover, with a count in case, tried before Ellis, Judge, at the Fall Term, 1856, of Cleaveland Superior Court.

The action was brought to recover the value of several slaves, which it was alleged he had an estate in, and which had been sold and converted by the defendant. The plaintiff bought the slaves, in question, from one Joseph Hardin, and took from him a hill of sale, as follows:

“ Received of A. R. Homesley twenty-three hundred dollars in full payment for six negroes, viz r one old man named Ilarny, &c., (describing them,) which negroes I warrant to be sound in body and mind; also, I warrant the title good. July 12th, 1853. J. ITaediN, \seal.Y)

At the same time the plaintiff executed and delivered to Ilardin the following instrument, viz:

*482“ I have tbis clay bonglit six negroes of Joseph Hardin, and liave paid Mm twenty-tliree hundred dollars for the same. He is to have the use or hire of the negroes until the 15th of October, for boarding them till that time. I also give him liberty to sell the said negroes to any other person, provided he does so in one month from this elate, by refunding me my money. The negroes, Sol, Harny, &c., (describing the same as are contained in the foregoing bill of sale). Signed, A. R. IIOMESLEY.”

It was proved that the defendant had the slaves sold entire, and not the particular interest of Hardin only, in order to satisfy an execution in his favor against Hardin,, and the •said property was bought by the latter.

Upon these facts, it was intimated by his Honor, as his opinion, that the plaintiff could not recover; for the reason that Hardin, the debtor, had an interest in the slaves, which could be sold under the execution.

In submission to which opinion, the plaintiff took a nonsuit, and appealed to this court.

Guión and La/nder, for plaintiff. '

JBasst&r, Qdbaniss, and Ilolto, for defendant.

Pearson, J.

A sale, under execution, passes only such interest or estate as the debtor may rightfully pass, because it operates by act of law. If, therefore, a debtor has a particular estate, and the property is sold under execution, the party entitled to the ultimate estate, or remainder, (as it is usually termed,) has no ground of complaint; for his estate is in nowise interfered with, notwithstanding the officer may profess to sell the “ entire estate, and not a particular interest only.”

In our case, the debtor was entitled to the slaves from the 12th of July, 1853, until the 15th of October, and we assume from the statement, that the sale was made during that time. The defendant did not interfere with them afterwards. It is clear that the count in trover cannot be maintained, for the *483plaintiff was not entitled to tbe possession at tbe time of tbe supposed conversion. It is equally clear, that tbe count in case, could not bo sustained, for, as we liave seen, tbe sale wbicb was made, at tbe instance of tbe defendant, in nowise interfered with bis estate. It is only in cases where tbe property is destroyed, or removed to parts unknown, (wbicb is considered as amounting to a destruction,) that a remainder-man can maintain “ case” for tbe injury to bis estate ; upon tbe same principle tliat a tenant in common is allowed, under such circumstances, to maintain an action.

There is an additional fact set out in tbe statement: The debtor bought the property so that to all intents and purposes, tbe plaintiff, after tbe sale, stood in statu quo, and bis having a cause of action, either in trover or case, is out of the question. There is no error.

Pkb CubiaM. Judgment affirmed.