The mule in question had been bought in South Carolina, in December, 1850, by one James M. Houston, who returned with the animal, and sold it to the plaintiffs for seventy-five dollars, and by way of payment, received a credit for that amount on the books of the plaintiffs, who were merchants. At the same time, it was stipulated and agreed that J. M. Houston was to have the mule for twelve months, at a dollar a month. An execution was put into the hands of the defendant, (who was a constable,) in April, 1851, under which he levied upon the mule in question as the property of James M. Houston made sale and conveyed it by a bill of sale to the purchaser, "out and out."
The mule was in the neighborhood when the writ was sued out, never having been taken away.
His Honor charged the jury that the plaintiff could not recover in the court for Trover, for that he had not the right of immediate possession, when the suit was brought. But, inasmuch as the defendant had made a bill of sale for the absolute property in the mule, he was entitled to recover on the count in case.
Under these instructions, the jury found a verdict for the plaintiff, and the defendant appealed. There is error in his Honor's charge. The count in Trover is abandoned. The only question arises under the second count, which is in case, upon the special circumstances. The jury were instructed that if they believed the title of the mule was in the plaintiff, they were, upon that count, entitled to a verdict, inasmuch as the defendant had made an absolute sale of the mule during the continuance of the particular estate. The animal in question had belonged to one Houston, who, being indebted to the plaintiffs, sold him to them, in *Page 515 discharge of their claim. Immediately after the sale, Houston hired the mule from the plaintiff for one year, giving a dollar a month. Before the expiration of the year, a justice's judgment was obtained against Houston, and the execution being levied on the mule, he was sold absolutely. The interest which Houston had, though but for a year, as a bailee for hire, was such an interest as could be sold under execution, and the purchaser could acquire, by virtue of the sale, per se, nothing but the interest which was in the debtor Houston, and after the expiration of the time for which Houston had hired the animal, the right of possession reverted to the plaintiff. The defendant had a right to levy on the mule, and sell the interest which Henderson had in it, and though his bill of sale was for the animal absolutely, its legal effect was to pass only the debtor's interest. It deprived the plaintiff of no right which he possessed, and did him no injury whatever; his right to the mule remained to him precisely as if there had been no sale by the defendant.
The case stated that the mule had not been taken out of the county, but is still in the neighborhood.
Judgment reversed, and venire de novo awarded.