ON REHEARING.
ODOM, J.A further consideration of this case has convinced us that our former decree, reversing the judgment of the lower court, is erroneous.
Our former holding is based upon two propositions; first, as stated by the organ of the Court:
“The evidence, as stated, shows that the seizure and sale of the automobile was made under a judgment recognizing a mortgage thereon and ordering it to be seized and sold, and the sheriff acting under a writ issued thereon did not incur any liability and did not have the right to demand of the plaintiff in execution an indemnity bond;”
and second, that plaintiff’s action had prescribed.
It is true, as we held, that where a sale is made by the sheriff under a judgment recognizing a mortgage on the property sold, and the sheriff acts under a writ issued thereunder, he does not incur any liability and he does not have a right to demand of the plaintiff an indemnity bond. Of course, if the sheriff has no right to demand an indemnity bond, a bond demanded and obtained by him from the seizing creditor is null and void.
In the case of Foucher vs. Kenner, 36 La. Ann. 149, it was held, on sound reason, that:
“A sheriff * * * cannot be made responsible, in damages, for executing a judgment recognizing a privilege on property provisionally seized in the suit, by the seizure and sale of the property.”
But that holding is not applicable to the case at bar for the reason that there was no judgment recognizing a privilege on the automobile seized and the sheriff had no order to seize and sell it. That *183point was definitely settled in the suit of Exchange National Bank vs. Palace Car Company, No. 32,906, 120 So. —, wherein the present plaintiff, W. A. Stevenson, intervened by way of third opposition, claiming the ownership of the car.
The suit of Exchange National Bank vs. Palace Car Company, No. 32,906, was on a debt secured by chattel mortgage on one certain “6—48 wire-wheel roadster, bearing motor No. 50,795”, that being the identical description of the car set out in the act of mortgage. The Court ordered a car of that description sequestered, and, according to the sheriff’s returns, he seized and took into his possession, while in the hands of Stevenson, one “6—48 wire-wheel, Moon roadster, Motor No. 50,795”.
On July 22, 1922, there was judgment for plaintiff, sustaining the writ of sequestration and recognizing plaintiff’s “special chattel mortgage, lien and privilege against the said ‘6—48 wire-wheel roadster, bearing Motor No. 50,795’ ” and ordering said car sold to satisfy plaintiff’s judgment.
The car which the sheriff had seized was seized while in the hands' of Stevenson, but, before the sale, Stevenson, the present plaintiff and third opponent in suit No. 32,906, protested the sale and made affidavit that he owned the car seized. Whereupon, the sheriff required of and obtained from the seizing creditor an indemnity bond with surety, under Section 3579 of the Revised Statutes, as amended by Act 37 of 1882, page 50, conditioned upon the seizing creditor’s paying to the sheriff all “such damages and costs as may be recovered against him by the said W. A. Stevenson, in the event the said Stevenson is declared to be the owner of said property.” The sheriff then, in accordance with Section 3580 of the Revised Statutes, assigned said bond to W. A. Stevenson, and proceeded with the sale of the car, which brought at public auction $1250, and which amount was paid over to the seizing creditor to apply on its judgment against the Palace Car Company.
Stevenson, without enjoining the sale, intervened by way of third opposition, setting up that he was the owner of the car free from any lien or encumbrance whatsoever; that he purchased the same from Baucum & Stewart, of Haynesville, Louisiana, and paid therefor $1,464 cash, and that at the time he purchased it, there were no recorded mortgages against it and further alleged that the seizing creditor had obtained judgment against the Palace Car Company “recognizing a chattel mortgage upon a Moon, wire-wheel roadster, bearing No. 50,795, and that under the said judgment, plaintiffs have caused your petitioner's car, bearing Motor No. 43,075, to be seized.” He prayed for judgment decreeing him to be the owner of the Moon roadster, Motor No. 43,075, and decreeing that said car “was not subject to seizure as the property of defendants (Palace Car Company), dismissing plaintiff’s claim to a chattel mortgage or to a lien thereon, and ordering that same be forthwith restored to the possession of petitioner.”
In answer, the Exchange National Bank admitted the seizure of the car in the hands of Stevenson, but denied that the car seized was the property of Stevenson, and “shows that Motor No. 43,075 is incorrect and is not the number of the car seized.”
The issues presented by Stevenson’s intervention and opposition hinged upon the identity of the car seized—Stevenson contending that the sheriff had seized property which belonged to him and which was *184not mortgaged, and that the Court had not recognized a mortgage and privilege on the car which was actually seized by the sheriff and the further contention that Stevenson had purchased the car free from any lien or mortgage. On those issues the case was tried, and on April 14, 1924, there was judgment for Stevenson, intervener, “decreeing the intervener to be the owner of that certain wire-wheel Moon roadster, bearing Motor No. 43,075, and being the same car seized herein by the plaintiff under execution against the defendant (Palace Car Company); it is further ordered, adjudged and decreed that the plaintiff’s demands for recognizing its chattel mortgage upon the said car, as against the intervener, be rejected, and said plaintiff (Exchange National Bank), defendant (Palace Car Company), and the sheriff of Caddo Parish are ordered to restore to intervener the possession of said car.”
The Exchange Ñational Bank appealed suspensively to this Court, and gave bond conditioned according to law. The judgment was affirmed (See Exchange National Bank vs. Palace Car Company; W. A. Stevenson, third opponent, 1 La. App. 307.)
Therefore, the question as to whether the seizing creditor had a mortgage and recognition of a privilege on the car seized, and as to whether it was owned by the seized debtor or Stevenson, has been definitely and finally settled in favor of Stevenson. It follows, therefore, necessarily, that we must now hold that the sheriff, in executing a process of the Court, seized property, not only claimed by but adjudged to belong to third opponent, Stevenson. So that the indemnity bond which the sheriff took from the seizing creditor, Exchange National Bank, “conditioned for the payment of all damages which the sheriff may sustain in case such third person should be adjudged to be the owner of said property,” which bond was duly assigned to W. A. Stevenson, the plaintiff in the present suit, is a valid and binding obligation upon the bank and its surety to pay to Stevenson whatever damages the sale of the property may have caused him, which the lower court correctly held to be $1250.00.
Under Article 400 of the Code of Practice, the sale of the car by the sheriff was null and, but for the indemnity bond which he took, the sheriff would be personally responsible for the damages. The effect of the bond, however, was to shift the responsibility from the sheriff to the seizing creditor.
After the judgment recognizing Stevenson as the owner of the car seized and ordering it restored to his possession had become final, he procured the issuance of a writ of possession commanding the sheriff “to place W. A. Stevenson, Intervener and Third Opponent * * * in full and complete possession of * * * a certain wire-wheel, Moon roadster, bearing Motor No. 43,075, and being the same car seized in this suit by the plaintiff, Exchange National Bank, under execution against the defendant, Palace Car Company.”
The sheriff in his return on the writ certified that he had called upon the bank, through its president, to produce the car, and upon its failure to do so, he had made search for the same and found that it was released to the bank by virtue of an indemnity bond on August 10, 1922, and he returned the writ to the Clerk’s office.
By the present suit, W. A. Stevenson seeks to recover on the indemnity bond which was assigned to him by the sheriff. *185Our former decree rejected his demand on the ground that the sheriff, in making the sale, was acting under an order of Court which protected him for which reason he had no right to demand of the seizing creditor an indemnity bond, and that the bond given was null; but it is shown by the record that the car on which the bank claimed a mortgage and lien and which was alleged to be the property of its debtor, the Palace Car Company, and which the sheriff was ordered to seize and sell, had Motor No. 50,795, and that the car which he actually seized and sold had Motor No. 43,075, and belonged, not to the seized debtor, but to Stevenson, a third person—a stranger to the original proceeding.
It is suggested that the car which the Palace Car Company intended to mortgage to the bank and upon which the Court recognized the lien and ordered sold, and which the sheriff did seize and sell, is the identical car which Stevenson claims, and that the confusion arose over an incorrect description of the car, and that the purport of the Court’s judgment on the opposition of Stevenson is that the chattel mortgage was invalid for lack of correct description. Be it so, the results, so far as the present suit is concerned, are the same. The burden of Stevenson’s complaint from the time he made the affidavit to the end of the lawsuit was that the sheriff had seized property which belonged to him, and not to the seized debtor, and that he owned the car, free from any lien or encumbrance whatsoever, and it was so adjudged by the Court. If it be conceded, tlferefore, that the mortgage was intended to cover the identical car, the fact remains, as held by the Court, that it did not, because the description was insufficient. Dr. Stevenson purchased the car from Baucum & Stewart, not the mortgagee, and paid cash for it. Before doing so, he called by phone the Clerk of the District Court of both Claiborne and Caddo Parishes, where the mortgage was recorded, and asked if there was a mortgage on the car with Motor No. 43,075,* the correct number, and received negative replies. In the case, as reported in Exchange National Bank vs. Palace Car Co., 1 La. App. 307, the Court held, to quote;
“It is clear, we think, that the car was not described in the mortgage, so as to make it possible to identify it (Section 2 of Act 198 of 1918), and hence that as to an innocent third purchaser, it can have no effect.”
In our former opinion, we held that the plea of prescription of one year interposed by the bank was good, and sustained it. But that holding was based upon the finding that the indemnity bond was void, and that, therefore, plaintiff’s action was not ex contractu, but was one for the value of property wrongfully taken and appropriated, -which action, it was held in Liles vs. Producers Oil .Company, 155 La. Rep. 386, 99 So. 342, “is not distinguishable from an action as for a tort or quasi offense and is prescribed in one year from the time knowledge is received by plaintiff of such wrongful appropriation.” (See Liles vs. Barnhart, 152 La. Rep. 419, 93 So. 490; DeLizardi vs. New Orleans Canal & Banking Company, 25 La. Ann. 414.)
In Edwards vs. Turner, 6 Rob. 382, it was held that an attachment of property of a third person as belonging to a defendant is a quasi offense, and that the action by the owner for damages is prescribed in one year from the seizure and not from the date of the judgment establishing the title of the owner. The same was held in the case of DeLizardi vs. New Orleans Canal & Banking Company, supra. The present suit is primarily on the indemnity *186bond which was valid. The action, therefore, is ex contractu and is not prescribed by one year.
Lastly, the bank interposed a plea oí estoppel based upon the ground that attorneys, Cook & Cook, who now represent Dr. Stevenson, were present at the public sale of the car and made no protest. The agreed statement of facts, however, shows that Dr. Stevenson was not present at the sale and that Cook & Cook were not at the sale representing Stevenson, but were representing Baucum & Stewart. A plea of estoppel based on the same facts was urged in the case when it was before the Court on the opposition of Stevenson, and was disposed of by the organ of this Court (See Exchange National Bank vs. Palace Car Co., 1 La. App. 307), in these words, which we adopt:
“And as to the plea of estoppel, it is without merit, because the third opponent was, at the very moment oí the sale, protesting in the most solemn manner (by a suit in court) against the sale of his property. The logic of .counsel’s argument on this plea is that a third person whose property is about to be sold for the debt of another, must either enjoin the sale, or forever—thereafter hold his peace. The law is not so. It expressly authorizes the identical proceedings which the third opponent followed in this case. C. P., Art. 400.”
It is not necessary to pass on plaintiff’s first alternative plea, because we hold that plaintiff is entitled to recover on'the indemnity bond.
For the reasons assigned, it is now ordered, adjudged and decreed that the judgment of the District Court appealed from be affirmed, with costs.