By the Court.
Starnes, J.delivering the opinion.
[1.] Upon examination of the bill in Equity, as it ^appears in the transcript of the record in this case, we find no charge that the crop of 1851, or any part of it, made by Kitchand on the leasehold estate in question, was invested in any part of the property sold by the Sheriff. There is an interrogatory, it is true, calling on him to say whether or not any portion of this crop had been so invested; but such an interrogatory, fishing in its nature, because no foundation is laid for it in the bill, constitutes no part of that bill which the defendant is required to answer, and presents no equity.
A part of the prayer, which asks that the defendant may account fully for the disposition he has made of the crop of 1851, is also, for a-similar reason, objectionable.
We also find from the structure of the bill, that no injunction is granted as to any portion of the property, except the proceeds of the crop of 1852, and the negroes. Neither does the bill state that any. portion of the live stock levied on, was received from Davis, nor claim any equity on account of stock so received.
We accordingly think that the Court below was right in ruling on these points as he did. Nevertheless, we are constrained to send the case back for .the following reasons:
[2.] The .whole of the fund in the. Sheriff’s hands, out of which the Court directed payment to these several judgment creditors, was not a fund raised by the sale of defendant Kitch- and’s property, at Sheriff’s sale in terms of the law, and therefore, not subject to the usual distribution as such, among the judgment creditors.
*490When property is levied on by the ministerial officer of the Court, the law points out and prescribes the way in which he must proceed to dispose of and sell the same, and thereby divest the title of the defendant. If, after such levy, the parties plaintiff and defendant come together and agree that the property shall not be sold according to the requirements'of the Statute, but that it shall be disposed of by the Sheriff, in accordance with the terms of their agreement, and its proceeds held by him to await future litigation, and the sale takes place without any order of Court, sanctioning the same, such sale is not, technically, nor in the eye of the law, a Sheriff’s sale; that officer in making such sale, is not the ministerial officer of the Court, but the agent of the parties; and the Court cannot treat his acts in the premises, as the acts of its ministerial officer, or the proceeds of such sale as funds raised by Sheriff’s sale in due form of law.
It is true, that the levy and seizure of the property, clothed the Sheriff with a qualified right in the same, but that ceased when the parties agreed that the levy should not be executed in the only way in which the law authorizes the Sheriff to execute it; and when they interposed, with their consent, terms of sale, they paralyzed the arm of the ministerial officer, except as to the horses, hogs and cattle, which our Statute authorizes to be sold, as these were by this agreement; and the Sheriff, in proceeding to sell without advertising as required by law, or for the time required by law, and not on the day and between the hours prescribed by the Statute, was no longer acting as such officer, but as their agent, under the agreement, and sold the property by virtue of it, and held the proceeds subject thereto, until the litigation contemplated should terminate.
The object of the money rule moved against the Sheriff in this case was, to distribute a fund thus raised, among' the judgment creditors of the defendant; a fund which, for the purposes of such a rule, was coram non júdice, and the order o. the Court directed that it should be so distributed.
If that order had gone to the proceeds only of the horses, *491hogs and cattle, and the Sheriff’s return had separated these from the other funds, no valid objection could have been made, for the reason given. Under the term horses, we think mules should be included; and under that of cattle, we include sheep, the primary signification of the word' authorizing this use of it. The Sheriff’s return, however,. makes no distinction between the proceeds of the live stock, and of the furniture, gin, plantation implements, &c. Without an amendment of this return, then, no such order could properly be granted.
When the case goes back, the Sheriff can, perhaps, amend his return, separating the two funds. The plaintiff in error may also, in the meantime, amend his bill, and if he present an equitable claim to the Judge, when the Court may again be moved to distribute this fund, or any part of it, his Honor will, no doubt, respect the notice of such equitable claim, examine it, and do what, in his opinion, the purposes of justice require.
So far as that portion of the fund is concerned, which is not the avails of the sale of live stock, and which is held by the Sheriff as agent or trustee for the parties,funder the written agreement between them, until certain litigation shall terminate; it is not for us to prescribe the course which shall be taken with it, or the litigation which is to dispose of it. But we deem it not improper to intimate, that the bill already filed can be made, in our opinion, to subserve the purposes of such litigation, in the most adequate and complete manner.
[3.] The only other assignment of error, which, under the view we take of this case, requires our notice, is that which alleges that the Court erred in holding that the levy of the distress warrant estopped Davis from denying the title of Kitch- and. '
An estoppel is a preclusion in law, which prevents a man from alleging or denying a fact, in consequence of his own previous act, allegation or denial of a contrary tenor. Coke's Litt. 352. a. Steph. Pl. 196.
It operates either as an estoppel from matter of record, that is, on account of some admission made in-pleading in a Court *492of Record, from the deed, or other such instrument in writing, of the party, or from matter in pais.
The former of these, this suing out and levy of the distress warrant, could not have been, for the simple reason, that even if it could be regarded as a matter of pleading in a Court of Record, the claim by the distress warrant was not in principle, though in form, “ of contrary tenor ” to the equitable claim set up in the bill. It was only a different remedy by which the plaintiff in error supposed he could obtain satisfaction for his rent.
In this act, there was, of course, no estoppel by deed; and it only remains for us to ascertain whether or not it was an estoppel in pais.
This form of estoppel operates only where the party has done some act, not of record, or reduced to the solemn form of a deed, or used some languuge whereby “ he has derived a benefit, or prejudiced another.” In such case, he shall not be permitted to deny it. 1 Saund. Pl. 46. Wallis vs. Truesdel, 6 Pick. R. 456. Tufts vs. Hays, 5 N. Hamp. 452. Nichols vs. Arnold, 8 Pick. 175. Owen us. Bartholomew, 9 Pick. 527.
The record in this case, does not authorize the conclusion, that any such benefit to the plaintiff in error, or prejudice to the parties litigating with him, as is contemplated by the'law, resulted from the suing out and levy of this distress warrant.
There can be no doubt, that if the property had been sold under the levy of the warrant, the plaintiff would have been forever estopped as against all persons claiming under the sale, from denying the validity of such process; but that is not the case presented. Nothing, therefore, appears to authorize the conclusion that the plaintiff was estopped from pressing his equitable claim against this fund.