* Headnotes 1. Executions, 23 C.J., sections 453, 908; 2. Homestead, 29 C.J., section 429; 3. Executions, 23 C.J., section 496 (1926 Anno). The appellee, T.D. Bilbo, secured an injunction restraining the sheriff of Pearl River county from selling certain land under an execution issued upon a decree against appellee and Edwards Bros., appellant, and in favor of the Merchants' Bank of Hancock County, the bill alleging that the execution was void because the clerk who issued it failed to "indorse thereon that it was issued for the use of the surety." Edwards Bros, appellant, who paid the judgment or decree under section 3735, Code of 1906 (Hemingway's Code, section 2911); and the bill further alleging that the land levied on was part of the homestead of appellee, Bilbo, and that the attempted allotment of his homestead under section 2152, Code of 1906 (section 1827, Hemingway's Code), was void; and also that appellee, Bilbo, had a claim of nine hundred dollars against Edwards Bros., whom the bill alleged were the owners of the decree against appellee, and that the nine hundred dollars should be allowed as a set-off against Edwards Bros., execution creditor.
The appellant, Edwards Bros., demurred to the bill upon several grounds, but the chancellor overruled the demurrer on the specific point, as recited in his written opinion herein, that the allotment of the homestead to the appellee, Bilbo, was void because the sheriff in attempting to carry out the proceeding under the allotment statute (section 2152, Code of 1906; section 1827, *Page 492 Hemingway's Code), selected as one of the freeholders to make the allotment, one Gipson, an appraiser, whom the plaintiff in execution had already selected.
To put it in different words, the chancellor held that when the defendant in execution failed to select a freeholder to represent him in the allotment, then the sheriff should not have selected said Gipson as one of the three freeholders, because he had been selected by the plaintiff in execution, that is to say, that the sheriff should have selected three freeholder appraisers to make the allotment none of whom had been previously chosen by either of the parties to the execution.
A brief history of the case is necessary to an understanding of the decision. In May, 1922, the appellee, Bilbo, purchased a Fordson tractor and an Oliver disc plow, for which he executed several promissory notes with lien retained therein. Edwards Bros., appellant, indorsed the two promissory notes, and, when Bilbo failed to pay the notes, the Merchants' Bank of Bay St. Louis filed suit in the chancery court to recover against the maker and indorser on the notes, and to condemn the machinery to sale, and the proceeds to be applied on payment of the notes. There was a decree in favor of the bank against Bilbo and the surety, Edwards Bros., the machinery was sold and the proceeds applied to the payment of the two notes, and a decree over against Bilbo and Edwards Bros., in the sum of about eight hundred dollars was rendered. There is no complaint as to the regularity or validity of the proceedings up to this point.
Afterwards the execution complained of in the present suit was issued by the clerk to recover the balance due by Bilbo on the decree against him. It is alleged in the bill, though the exhibits thereto seem to show otherwise, that the surety, Edwards Bros. had satisfied the judgment against them by paying the amount to the Merchants' Bank and had the execution issued against the appellee. The execution was issued in the name of the Merchants' Bank, and if Edwards Bros. paid the decree *Page 493 and had the execution issued thereon, the record does not disclose that the proper affidavit by them was filed, nor did the clerk indorse thereon that it was issued for the use of the surety, who paid the decree as provided in the said section 3735, Code of 1906 (section 2911, Hemingway's Code). The appellee therefore contends that the execution was void for this reason.
When the execution was issued against appellee, Bilbo, the sheriff levied upon the whole land occupied by Bilbo as a homestead, and, acting under the said allotment statute (section 2152, Code of 1906; section 1827, Hemingway's Code), notified both the defendant and the plaintiff "each to select one householder or freeholder" to appear at an appointed time and set off to the defendant, Bilbo, a portion of the land embracing the dwelling house and the outhouses as the exempt homestead and the part so allotted to be dismissed from execution.
At the appointed time the freeholder selected as appraiser by the plaintiff was present but the defendant, Bilbo, who was also present, failed and refused to select a freeholder appraiser to represent him in the allotment. Thereupon the sheriff, in pursuance of the directions of the statute, selected three freeholders, one of whom was the freeholder Gipson, selected by the plaintiff. The three freeholders so selected were duly sworn and proceeded to make the appraisement and allotment, and the land which Bilbo was entitled to as a homestead was allotted to him, and the other land separated from the homestead was held under the execution. And appellee contends that the allottment was void under the statute because the sheriff selected said Gipson whom the plaintiff had already chosen to represent him as appraiser in the allotment, and the chancellor overruled the demurrer upon this ground.
The appellee, Bilbo, had been duly notified to be present on the occasion of the allotment, and was there in person but made no objection to the proceedings; nor did he make any affidavit, after the allotment and before the *Page 494 vendi. was issued, that he was dissatisfied with the allotment or that he believed it was incorrect or unfair, which would have entitled him to a suspension of the sale until an issue could be made up on the affidavit, and a trial had thereon, and a decision rendered upon the merits of the affidavit, all of which is provided for in section 2155, Code of 1906 (section 1830, Hemingway's Code).
We think, from the allegations and exhibits of the bill, the execution levied by the sheriff was valid under the statute. It was levied in the name of the complainant in the decree, the Merchants Bank, as provided by the statute, and upon its face is valid regardless of whether the surety, Edwards Bros., had satisfied the Merchants' Bank and become the owner of the decree; and the fact, that the clerk issuing the execution failed to indorse thereon that it was issued for the use of the surety, did not vitiate the process, and would only affect it, if at all, to the extent of making it voidable, which irregularity could have been reached by the proper motion, or could have been raised by the defendant on a hearing upon the return of the execution.
If the clerk issued the execution for the use of the surety it will be presumed, in the absence of proof to the contrary, that he acted in pursuance of his duty in the premises, and the failure to indorse the writ as mentioned above did not invalidate it. The defect, if it is such, should have been raised and corrected in the regular way after the return of the sheriff under the statute. Therefore we think the execution in favor of the Merchant's Bank was valid, and the proceeds therefrom will go to the appellant, Edwards Bros., if it shall be shown that they have in fact paid the amount of the decree to the Merchants' Bank, as provided in said section 3735, Code of 1906 (section 2911, Hemingway's Code).
On the second proposition, as to whether the allotment by the three freeholders was valid under the statute, we are of opinion that the selection by the sheriff of a freeholder who had already been chosen by the plaintiff in execution did not of itself make the allotment void. *Page 495
The sheriff was authorized under the circumstances to select any three qualified freeholders to make the allotment, when Bilbo refused to select one, and so far as this record discloses, we see no good reason for holding that the freeholder originally selected by the plaintiff was disqualified from serving with two others selected by the sheriff when the defendant was present and refused to act. When the sheriff accepted Gipson as one of the appraisers and put him under oath with the others, Gipson then became and was the selection of the sheriff, and not the selection and representative of the plaintiff, as provided and authorized by the statute.
If the freeholder, Gipson, complained about, was not qualified or was prejudiced or acted unfair toward the defendant in the allotment proceeding, this could have been reviewed and remedies by the defendant making the affidavit provided in section 2155, Code of 1906 (section 1830, Hemingway's Code), whereupon such objection and the fairness of the allotment would have been heard and determined by the court on the return of the process by the sheriff. Appellee Bilbo failed to avail himself of the remedy to have the matter heard anew upon its merits, but now seeks injunctive relief to secure the thing that he ought to have sought under the provisions of the statute, and we do not think he can now complain.
On the third point with reference to the claim of nine hundred dollars due by Edwards Bros., to appellee Bilbo for the use of the machinery, we think the contention is unsound. If appellee had a meritorious claim of this character, he could have presented it in the original chancery suit of the Merchants' Bank against him and Edwards Bros., when the machinery was levied upon and sold, and the proceeds applied to the payment of the decree against Bibo and Edwards Bros., on the notes given for the machinery. This question could have been litigated in that suit, but, moreover, the claim cannot be here used to offset the amount of the decree in execution, because it is not shown that Edwards Bros., are insolvent. *Page 496 It also appears from this record that the claim is scant of merit because appellee disclaimed ownership of the machinery or any right to recover for its use in the original suit against him.
In view of these conclusions, it is our judgment that the order of the chancellor overruling the demurrer was error, and therefore the decree is reversed, and the cause remanded for further proceedings.
Reversed and remanded.