*501ON REHEARING.
It is suggested by appellant’s counsel that it was necessary to set out the questions to and answers of the several witnesses in extenso in the bill of exceptions, in the shape as complained of and condemned in the foregoing opinion, in order for this, court to be able to properly interpret or determine the real meaning and legal effect as evidence of those answers, which seems to have been a disputed question between the parties— the appellant here contending, in the first instance, that if his construction be correct there was no conflict in the evidence and he ivas consequently entitled to the affirmative charge, which was refused him; and, in the second instance, that if there was conflict the evidence was so overwhelming in his behalf that the court should have set aside the verdict and judgment for the defendant and granted a new trial on the motion, while, on the contrary, it was denied. On reconsideration, we are of opinion that there is merit in the suggestion as to the necessity in this particular case of so setting out in the bill of exceptions the questions to and answers of the several witnesses as they there appear, and therefore the order heretofore entered striking the bill of exceptions will be set aside and annulled; but, as we are still of opinion, after considering the case with the bill of exceptions as a part of the record, that judgment of the lower court should be affirmed, as it was affirmed in the original opinion, the application of appellant for a rehearing will be denied.
The facts upon which the appellant (who was plaintiff below) bases his right to recover are so fully set forth in count 1 of the complaint as amended (which the Reporter will set out) as to be sufficient to a complete understanding of the points here considered and *502decided, without the necessity of a further statement of them in that particular. .The defendant pleaded the general issue.
It is well settled that a sheriff (which the complaint discloses the plaintiff was) acquires by virtue of the levy a special title or property in the goods and chattels upon which he .levies a writ of execution or attachment, which will support detinue, trover, or trespass against one who wrongfully disturbs his possession; and this is upon the theory that he is liable over to some one else for the value of the property. — Cobb v. Cage, 7 Ala. 619; Foster v. Mabe, 4 Ala. 402, 37 Am. Dec. 749; Ryan v. Couch, 66 Ala. 250; Bruister v. Gavin, 127 Ala. 319, 28 South. 410; Chaney v. Limber Co., 132 Ala. 317, 31 South. 369.
Upon the same principle and on the same reasoning, he can maintain a suit, as here, in assumpsit against one to whom he has intrusted as bailee the custody of the property pending the levy, for a breach by such party of the contract of bailment in failing or refusing to deliver the property upon the subsequent demand of the sheriff; or he may, of course, treat the refusal to deliver as a conversion of the property and sue in trover for the tort, rather than in assumpsit for the breach of the contract. — Crescent News & Hotel Co. v. Hines, 7 Ala. App. 609, 61 South. 9; Easley v. Walker, 10 Ala. 671; Am. & Eng. Ency. Law, vol. 25, p. 707 et seq.; Story on Bailments, § 124 et seq.
His right of action in every case, however, is dependent upon his liability over to some one else. He cannot, after he has been discharged from such liability, maintain the action, unless, of course, that discharge resulted from his payment of the liability. — Ency. supra, and cases cited in note 1, p. 709. From the time of the levy until the property is sold and the proceeds paid to *503him, his liability for the value of the property levied upon is to the plaintiff in execution, who had the right to have the property sold at execution sale and its proceeds applied to the judgment. When, however, those proceeds have, as a result of such sale, come into the hands of the sheriff, whether they have been actually paid by him to the plaintiff, or not, then, of course, the right of the plaintiff in execution attaches to them and ceases in the 'property itself; and consequently the sheriff is thereafter liable to the plaintiff for these proceeds alone, until he pays them; and he is in no way liable to the latter for, or on account of, or with respect to, the property itself, or its value; and could not, consequently, maintain an action for either on any such theory. In other words, his right to recover from a third person the property or its value, so far. as any liability he may be Tinder therefor to the plaintiff in execution is concerned, ceases after an execution sale of the property and the payment of the purchase money. He has but one other duty to perform with respect to the property levied upon, after it has been sold at execution sale and the purchase money paid over to him, and this duty is not to the plaintiff in execution, but is to the purchaser at the sale, and that duty is to deliver to such purchaser the possession of the property. — Foster v. Mabe, 4 Ala. 402, 37 Am. Dec. 749; Andrews v. Keith, 34 Ala. 722; Nabring v. Bank of Mobile, 58 Ala. 204. Until this duty is performed, the sheriff’s special title in the property continues, not, as seen, because of his liability to the plaintiff in execution Avith respect thereto — which liability, as noted, was discharged by the sale —but because of his liability to the purchaser, ivho bought at the sale on the assumption that the sheriff had acquired dominion over the property by the levy and would deliver its possession to him on payment of the purchase money.
*504' Here, the proof without conflict shows that, after the making of the alleged levy, and after' the making, subsequent hereto, of the alleged contract of bailment with the defendant for keeping the custody of the property, and before the commencement of this suit, the plaintiff, as sheriff, sold the property, so levied upon and bailed, at an execution sale, had under and in satisfaction of the execution so levied upon it; and that at said sale one Yielding became the purchaser of the property, complying then and there with the terms of sale by paying the purchase money in full to the sheriff; who on that day formally returned to the city court, from whence it issued, the execution as fully executed and satisfied, reciting in the return the fact and date of the levy, of the advertisement and sale of the property, the name of the purchaser, the payment of the purchase money, and its application to the satisfaction in full of the judgment and costs. By his purchase at that sale, the purchaser, Yielding, acquired, so far as concerns the sheriff in this suit, the title of the defendant in execution to the property (Code, § 4125); and this is so notwithstanding the property itself was not actually produced by the sheriff at the sale, but was sold upon and by samples exhibited and asserted to have been taken from the cotton then asserted to be under levy in the custody of defendant as the sheriff’s bailee'and in his warehouse in the city where the sale was had. The absence of the property at the place of sale, it has been held, does not render the sale void, if there was a valid prior levy. — Foster v. Mabe, 4 Ala. 402, 37 Am. Dec. 749; Andrews v. Keith, 34 Ala. 723. After the sale and the payment of the purchase money to the sheriff, the purchaser made demand upon the defendant here, the alleged bailee of the sheriff, for the possession of the cotton, which demand was refused; the defendant here denying that there had been *505a levy upon the property and a bailment to him. The purchaser reported this fact and complained to the sheriff, who, in recognition of his liability to the purchaser for a failure to deliver possession of the property, discharged it by paying the latter the value of the property, and brought this suit to recover it of the defendant and thereby to reimburse himself.
His right to recover, under the allegations of the complaint, depends upon the establishment by him of two other facts, both disputed: A valid levy upon the property and a bailment thereof to the defendant. It appears without conflict that at the time of the alleged levy the defendant was in possession of the property as a -warehouseman — as bailee — for the defendant in execution. His liability to the latter as such bailee is relieved if the property is taken from his custody under legal process. — Code, § 6135. The attempted levy was futile and of no effect as such in this case, even if we accept as true all the testimony of the plaintiff’s witnesses as to Iioav it Avas made, unless the defendant here recognized its sufficiency at the time by agreeing on account thereof to hold the. property thereafter as bailee for the sheriff. If he did, he is now estopped from denying the validity of the levy. — Story on Bailments, § 125. If he did not, then the sheriff cannot recover; because his oAvn proof shows that, in the absence of such bailment, he did not assume such dominion and control over the property as for his acts to constitute a valid levy. It appears that all he did Avas to go into the defendant’s warehouse, where there were hundreds of bales of cotton, and locate, Avith the aid of a negro porter-working at the warehouse, two bales whose numbers (3416 and 3423) corresponded Avith those he sought, crawl up on top of these bales to see these numbers, and then go out and tell the stenographer in the office of the warehouse that *506he had levied on two bales of cotton in the warehouse, numbered 3416 and 3423, and leave at said office a written notice to this effect for the president of defendant company, who was not in. It appears without dispute that there were other bales of cotton in the same warehouse bearing the same numbers, and that, consequently, the cotton levied on could not be distinguished from other cotton bearing the same numbers by giving the numbers only; but that it was necessary to this end to give other marks of identification which each bale bore in addition to the number on it. The' cotton was not removed by the sheriff and not even in any way set apart or separated from the the other cotton in the warehouse, into which a large number of new bales were coming daily; but it was left there just as-it Avas, without any other assumption of dominion over it by the sheriff than in the way avc have stated. The acts of the sheriff (or, rather, his deputy) in this particular were not sufficient in themselves to constitute a valid levy.— Hamilton v. Maxwell, 119 Ala. 23, 24 South. 769; Abrams v. Johnson, 65 Ala. 465; Inman v. Schloss, 122 Ala. 468, 469 ( 25 South. 739. Hence, if he is to recover, it must be upon the ground of an estoppel on the part of the defendant here to deny the validity of the levy, which depends upon whether or not there was a contract of bailment enteréd into by it with the sheriff in recognition of the levy. In fact, the complaint itself is predicated upon such a contract, and it must be proved at all events before the plaintiff can recover.
As to whether there Avas such a contract, the evidence is in conflict, which, of course, justified the court in refusing the affirmative charge requested by the plaintiff; and that conflict is so serious in material particulars that Ave are not willing to say that the court, who saw and heard the witnesses, was not likewise justified in *507overruling the plaintiffs motion for a new trial. — Cobb v. Malone, 92 Ala. 630, 9 South. 738.
The application for rehearing is consequently overruled, leaving the judgment of affirmance heretofore entered to stand; but the former order of this court striking the hill of exceptions from the record is set aside and annulled for reasons stated in the foregoing opinion.
Application overruled; affirmed.