Cambell v. Anderson

COLEMAN, J. This was an action of trespass by the appellee, Anderson, against the sheriff for the wrongful levy upon and sale of a mule. The defendant Campbell, the sheriff, for a defense pleaded justification by virtue of certain executions in his hands. The facts show that Anderson on and prior to January 14th, 1893, was the owner of the mule; that on that day he sold it on a credit to one Joe Fleming, securing the purchase price by a mortgage on the mule, which was executed at the time, and duly recorded. Prior to the 28th day of April the mortgagor, Fleming, sold the mule to a third party. The mortgagee becoming dissatisfied at the sale of the mule to the third party, by mutual arrangement with the mortgagor and the purchaser of the mule,, he took [659] the mule back into his possession, and delivered up the mortgage to the mortgagor, thus rescinding the sales. In October, 1892, Dean & Whaley had recovered a judgment with waiver of exemption against Joe Fleming, the mortgagor. On the 28th of April, 1893, an execution on this judgment came to the hands of the sheriff, which was levied upon the mule on the 2d day of May, while in the possession of Anderson. The mule was sold by virtue of this levy and execution on the 13th day of May, 1893. After the levy under the execution against Joe Fleming and advertisement of the sale, but before the da}7 of sale, an execution came to tho hands of the sheriff against Anderson, issued on a judgment recovered against him in the year 1885. This judgment did not contain a waiver of exemptions, and there was neither a sale nor a levy by virtue of the execution against the plaintiff Anderson. Both executions are pleaded in separate pleas. The statute does not create a judgment lien. It declares that “a fieri facias is a lion * * * from the time the writ is received by the officer.” There is no evidence to show that the officer received a writ of fieri- facias on the judgment against Joe Fleming, the mortgagor, prior to the time of the sale of the mule by him to the third party, or prior to the return of the mule to Anderson and the cancellation of the mortgage debt. The mortgage to secure the payment of the purchase money gave the mortgagee a priority over that of the judgment creditor of the mortgagor. There was at no time, any interest in the mortgagor upon which a lien could attach except that of the equity of redemption. No lien having attached to the equity of redemption prior to the sale of the mule by the mortgagor, there was no interest in the judgment debtor when the fieri facias came to the hands of the sheriff to which a. lien could attach. These facts are not controverted. The execution against Joe Fleming under which the sheriff levied and sold the mule, furnished no defense to the action. It is not pretended that either the levy or sale was made by virtue of any execution held by the officer on the judgment agáinst Anderson himself, or that prior to the levy, the sheriff had received the fieri facias against Anderson on the mule. Though pleaded as a defense, we do not understand from the argument of counsel for [660] appellant that he claims justification against the action by virtue of the execution against Anderson. The contention is, that the court erred in not allowing in mitigation dr reduction of damages the price realized at sheriff’s sale of the mule, and which it is claimed should be credited on the execution against Anderson. Priority of claims of creditors to the money arising from the sale of the property of a common debtor often arises for adjudication, but how a judgment creditor of one debtor, is entitled to priority to the money arising from-the sale of property sold as the property of a different person to satisfy the claim of another judgment creditor, is not so easily understood. We need not consider that question. The facts in this case show, that if the levy had been made upon the mule as the property of the plaintiff, under an execution against him, of which he had notice, issued upon a judgment, which did not contain a waiver of exemptions, that he could and would have put in a claim of exemptions. The defense made on this aspect of the case is, that it is permissible to sell one man’s property under an execution against another, and after the sale, a judgment creditor of the owner of the property, who could not successfully enforce his own judgment directly against the property, may in this indirect manner, subject the proceeds realized from an unlawful sale. We find no error in the record. Affirmed.