*262ON REHEARING.
. Ellison, J.— The declarations and announcements made by plaintiff’s agent at the trustee’s sale were sufficient to prevent his recovering any damage which may have accrued to him by reason of a sacrifice of the homestead caused by such declarations. In keeping or recognition of the justness of this, plaintiff at the trial, when defendants were beginning to prove such declarations, conceded that he did not claim that the land brought less than its value at the sale.- This does not appear as mere clerical lapse made in transcribing the bill of exceptions. It is a distinct and emphatic disclaimer ; and, as we must accept the record as absolute verity, we cannot ignore it.
It is, however, insisted that the plaintiff is entitled to nominal damages, at least, for the alleged wrongful levy upon his homestead. Whether an officer who levies a writ of attachment upon land which is specifically and distinctly his homestead, and nothing more, is liable for the mere levy we need not say, as such is not the question before us. The case here conceded that the land attached was more than a homestead. It comprised one hundred and sixty acres of land worth at least double the statutory value of a homestead. It is true there were incumbrances shown, which, when allowed, reduced plaintiff’s interest to less than the statutory value. But these were matters, conceding that they were known to the officer, with which he could not concern himself at the time of the levy of the attachment. It is true that by the provisions of sections 5436 and 5437, Revised Statutes, 1889, the sheriff has some duties to perform at the time, or perhaps after, he shall levy an execution. These sections, however, do not apply to writs of attachment, which go out long before execution, and where it is often inexpedient to enter into investiga tions and proceedings demanded by said sections. We are, therefore, of the opinion that for the mere levy of *263an attachment on a homestead, in cases like the one here considered, in the absence of actual damages, nominal damages should not be allowed.
It is contended, also, that nominal damages should at least be allowed for the levy on exempt personal property, notwithstanding it may have been returned to plaintiff. The petition, however, is not based on a wrongful levy on personal property. It is true it charges a levy on such property as well as on the homestead, but these allegations are merely preliminary to a statement of what the action is for. This is not a suit in trespass. It is not for a wrongful levy and seizure of property, but it is for the loss of a homestead by a sale under a deed of trust which plaintiff was disabled from preventing by reason of these levies. The action is not bottomed on the trespass. N o action is stated for the levy as such; the action is for the loss of the homestead. The case stated in the petition is this: Plaintiff had a homestead upon which he had placed an incumbrance ; he also had personal property which was exempt from attachment. He would have been able to discharge the mortgage on the homestead by utilizing it and the personalty to raise funds wherewith to pay the mortgage, but for the wrongful levy made by defendant. That in consequence of the wrongful levy he was unable to utilize the property, and the mortgage was foreclosed whereby he lost his homestead. The grievance complained of is the loss of the homestead by a sale under the mortgage which the levy rendered him powerless to prevent, and for such loss he asks damage. Therefore, as we have seen that no damages accrued by reason of the sale of the homestead, none should be allowed for the levies.
Counsel have presented plaintiff’s case to us with much force, but we are at a loss to discover a just ground for recovery on the law or the fact. Indeed, after a careful scrutiny of the evidence as it has been *264laid, before us, however it may be thought to exist outside the record, we are unable to find where any wrong has been inflicted upon plaintiff. The levy of the attachment upon the personalty, if it can be so called, since it was left with plaintiff ( defendant in the attachment ), and he permitted to use it, was followed by an offer to return. Plaintiff accepted all, including corn, except what he pointedly disclaimed having an interest in, it having been either mortgaged or sold by him. The corn grown on the homestead, he stated, as was shown by some of his as well as defendant’s witnesses, he had sold ; it appears quite clearly from the testimony that at different times, especially when the appraisers were setting off exempt property, that he received all the personalty including corn, except what he disclaimed as being either mortgaged or sold.
The judgment with the concurrence of the other judges will be reversed.'