delivered the opinion of the court
The appellee, Mary Griffith, owned the one-half of a tract of land in the county of Mason, and some personal estate, and while the owner of this property she executed a ’ mortgage on her interest in the land in conjunction with her brother, who owned the remaining half, to' one Riley, to secure him in the payment of two notes for borrowed money upon which she was bound either jointly with, or as the surety for, her brother.
*378The present appellants, or some of them, who were the creditors of the brother and also of the appellee, filed a suit in equity against the two (brother and sister), alleging that the mortgage executed by them to Riley was in contemplation of insolvency, and with the design to prefer him as a creditor, and therefore their entire estate passed, under the statute, for the benefit of creditors. The court below so decided, and on an appeal to this court it was held as to the appellee, Mary Griffith, she was not insolvent, nor was the mortgage executed in contemplation of insolvency, with a view to prefer the particular creditor. The judgment from which she appealed was not superseded, and when the mandate of reversal was returned to the lower court her land and personal estate had been sold and the proceeds distributed, or a portion at least, to creditors. The sale of her estate under the judgment passed the title to the purchaser, although a reversal was had, as has been often decided by this court, and her remedy was to take the purchase money and interest that had already been paid to creditors, for the injury she had sustained by reason of the erroneous judgment below, or she might proceed to recover damages of those who had procured the erroneous judgment, and those damages would be confined to the value of the property, real and personal, at the time it was sold, with interest on the proceeds and the costs expended by her in the action; that is, the ordinary costs of such a litigation, not including attorneys’ fees or the extraordinary costs incurred by her in the defense of the original action. This is not an action for a malicious prosecution, or a proceeding to recover damages by *379reason of the wanton or reckless conduct of the appellants, but a claim for restitution and damages against parties who, by obtaining an erroneous judgment, sold the appellee’s property when they had no right to have it sold.
When money has been collected under an erroneous judgment that has been reversed, the party obtaining it may be required to pay back the money by a rule to do so, or a restitution of the property, if not sold, may be required in the same manner; but the proper remedy, where the land or personalty of the party has been sold, and a recovery of its value is denied, is to bring an action for damages, alleging such facts as will show that the plaintiff is entitled, by reason of the reversal, to what he has been deprived of by the erroneous judgment. As this court intimated when this case was here on a former appeal, the appellee might proceed by rule or by a supplemental pleading, to recover what she was entitled to, we will treat'the proceedings below as an action to recover damages for the wrong, as all the parties aré before the court, and seem to have made no question as to the mode of proceeding. The question of more difficulty than any other in this case is as to the time at which appellee’s land should have been valued in estimating the damages, whether at the date of the reversal or when the order of reference was made to the commissioner to take proof of value, or at the time of the sale of the land by the commissioner under the erroneous judgment.
It is insisted by counsel for the appellants that the only criterion of recovery is the amount for which the land sold with the interest, as the error committed was *380that of the court below, and not the plaintiffs who brought the action.
It is plain that one of the two parties must suffer, and the party who asks for and obtains the erroneous judgment under which the property of another is seized and sold, when it was not subject to be sold, should make compensation for the loss. It is true he has received only what the land sold for, but at the same time he has been the means of depriving the owner, of its real value. We .have been referred to cases where the amount of recovery has been confined to the price the property brought under the judgment with the interest; but those are cases, or the majority of them, in which the officer has sold property under an erroneous judgment that had been reversed, when he had not parted with the proceeds. In such cases the officer could only be liable for the amount realized, and in the other cases cited there was no question made as to the right of the injured party to recover more than the purchase money and interest, or, in other words, that where the property has been sold, restitution may be had in money. That the owner of land thus improperly sold may be restored the money for which it was sold is evident, but can he decline that and claim its value, and if so, when is that valuation to be made ?
In the case of Thompson v. Thompson, 1 Coxe’s Reports (New Jersey), page 160, it is said the words used in the judgment are, that the defendant “shall be restored to all he has lost by occasion of the judgment, and this is and ought to be the measure of damage.”
Freeman on Judgments, section 482, says: “But the plaintiff, on the reversal, is liable to an action to-*381recover the damages occasioned by a sale of defendant’s property made under the judgment prior to its reversal.”
In South Fork Canal Co. v. Gordon, 2 Abb., U. S., 479, Mr. Justice Field states the rule to be: “That the defendant or unsuccessful party in the court below is to be restored by reversal to all things which he lost by the erroneous judgment or decree, if the title to them has not passed by the previous enforcement of the judgment or decree, and in such case he is to have a right of action for a money equivalent.”
In Sutherland on Damages, volume 1, page 831, the rule is stated to be: “But where the action is against the person who occasioned the injury, recovery may be had for the whole damage the injured party sustained by reason of the erroneous judgments and executions. He may recover the full value of the property sold.” (See McJilton v. Love, 13 Illinois, 486; Reynolds v. Hosmer, 45 Cal., 616; Bank of United States v. Bank of Washington, 6 Peters, 8.)
In this State the purchaser of property under a judgment, whether the plaintiff or a stranger, is vested with the title, and the responsibility of those procuring the judgment should be for the value of the property sold; and the fact that the plaintiff may hold what he buys, makes it the more necessary for recognizing such a rule. When, then, is the property to be valued ?
Some general rule must be adopted applicable to this class of cases, and it seems to us that the time at which the sale took place should ordinarily be the period at which, where a reversal is had, the valuation should be made. It is then that the owner becomes divested of *382title, by taking his property from him by virtue of an erroneous judgment, and passing the title to another. Like an action of trover and conversion, the value of the property at the date of the conversion is the true criterion — not what the land or property sold for, but its value on that day, for then the plaintiff ceased to be the owner, and the absolute title vested in another.
In the case before us, the appellants are required to account for the difference between the value of the land at the time the present judgment was rendered and the price it sold for to Howard, the purchaser. Having increased in value from Howard’s purchase up to the time this judgment was rendered, the difference is given to the appellee in damages, and also the rents. This is erroneous.
The value of the land at the date of the sale is the criterion, with the reasonable rents up to the day of sale, or to the time the purchaser obtained possession, it having been placed, in the hands of a receiver, and then with interest from that time, subject to a credit by any debts that may have been paid out of the sale money to creditors who had filed their claims, and upon which the appellee was liable. Whether liable or not on any of these claims, this court can not now determine.
As to the personalty, all that portion of it to which appellee was entitled (one-half), and that was sold under the erroneous judgment, the appellee will recover its value.
When giving to the appellee the value of one-half of the land at the date of sale, with rents and interest as indicated, and one-half of the personalty sold, or its *383value with interest, and crediting her claim by the amounts paid out for debts she was liable to pay, she then has restitution by way of damages for all that she is entitled to recover, save the costs she has incurred.
She is not responsible for attorneys’ fees paid by the appellants, nor are they liable for fees paid to attorneys by the appellee.
There is another question to be determined as to the liability of these appellants or some of them. The plaintiffs in the original action, who sought and obtained the judgment, are alone liable in damages. After the judgment was entered, determining that the estate of the debtor inured to the benefit of her creditors, many of these appellants did nothing more than file their claims with the commissioner, in order that they might obtain their distributable share of the fund arising from the sale of her property, and in this way only became parties to the action. They have been made jointly liable for the damages sustained when they were in nowise instrumental in procuring the judgment. They may be liable to refund any money improperly paid them with interest, but to no greater extent; and if the money received was in satisfaction of a claim justly due them by the appellee, we perceive no reason for requiring restitution from them.
This case should go back to the commissioner to audit and settle the claim of the appellee and the creditors. Her account, when made up, to be credited as of the date of payment, which stops interest to that extent, of the claims paid out to creditors where her liability existed, and then giving to her the ordinary costs of the *384litigation incurred, will make a fair and legal adjustment of the controversy.
The judgment below is reversed, and remanded for proceedings consistent with this opinion.