We take the statement of facts in these consolidated, cases from the brief of appellants’ counsel, which we find sufficiently accurate.
On the 18th January, 1854, Palmer & Go. obtained judgment against Thomas BT. Ban-ham, for $1,140 OC, with eight per cent, interest from 16th of April, 1853.
On the 3d of February, 1854, execution was issued under the judgment On the 7th of February, Thomas ¥. Ban-ham pointed out “one town lot with the buildings thereon;” and afterwards gave a delivery bond for the property, with Bales B. Billingsly as his security. The property was offered for sale on the first Saturday of April, for cash, and there being no bid, the property was re-advertised for sale on twelve month’s credit. This sale was enjoined; and in January, following, the injunction was dissolved.
In the meantime (9th June, 1854,) Thomas Bf. Ban-ham, sold the property (pointed out by him to he seized, and released by delivery bond) to Miltenberger, for $2,500.
On the 27th of January, 1855, the property was re-advertised, and on the day appointed, the sheriff offered the property for sale, notwithstanding the goroperty had not been delivered to him,; and Thomas BT. Ban-ham and Mr. Todd, the agent of Miltenbergm-, prohibited the sheriff from selling it, as it was the property of Miltenberger.
The sheriff acting under instructions from the attorney of Palmier & Go., given before he had any knowledge of the sale to Miltenberger, bought the property for Palmer & Go., and at the same time declared the delivery bond forfeited for the residue.
On the 7th of March, 1855, execution wjis issued on the forfeited delivery bond; andón the 8th the sheriff levied oil two negroes, Thornton and Westle/y. B. B. Billingsly executed a delivery bond for the property. Before the day of sale, one Green Slvropshire, to whom these and other slaves and property of Billingsly had been transferred before the seizure, sued out an injunction on the grounds that the negroes seized were Ms property. This injunction was subsequently abandoned by Shn-opshire.
On the same day that the negroes above mentioned, were seized under Pal-men- de Go.’s execution, the sheriff levied on a hoy named Bob, about 14 or 15
On the 28th of June, 1855, the sheriff levied on a negro named Ohaides, in the cases of Smith & Heard, Executor, v. Billingsly, and John G. Williams v. Billingsly; and on the 27th of June, he levied on the negroes, Thornton, Westley and Bob, under an execution in the cases of B. B. Briscoe & E. Earris ; and on July 5th, he levied on Thornton and Westley, under the execution of Brandar, Williams S Go.
One of the houses or buildings on the lots seized, bonded for and transferred to Miltenberger, was burnt at the time of the sale, and notwithstanding the opposition of Barham and Miltenbm'ger, the property was sold and a credit of $382 was made upon the execution, and the bond was declared forfeited for the residue on the ground that the house was not delivered.
The principal question raised in this case, is the effect of the forfeiture of the forthcoming bond.
The Statute of 1842 reenacted in 1855. Rev. Stat, p. 528, Sec. 5, is in these words, viz: “Sec. 5. The defendant in execution whose property has been seized, shall have the right to retain the property in his own possession from the time of such seizure until the day of sale, on condition that said defendant shall execute his bond in favor of the plaintiff in execution, in solido, with one or more sufficient securities domicilliated in the Parish, for the amount one-half over and above the estimated value of the property seized, conditioned for the faithful delivery of the property at the time of the sale, which bond shall be filed in the office from which the writ issued within ten days after the date thereof; and upon forfeiture of said bond, which fact shall be made to appear by the certificate of the officer charged with the execution of the writ, the same shall have the same effect as a twelve months’ bond, and execution shall issue thereon, on application of the plaintiff or his attorney, against all the parties to said bond.”
The appellees contend, under this Statute, that the execution of the delivery bond does not release the seizure, though it permits the property to remain in the custody of the debtor, and that the debtor can no more legally sell or dispose of the property than if no such bond had been executed. The appellants contend that the sale to Miltenberger, after the execution of the bond, was a valid sale, and the sheriff was justified in declaring the bond forfeited.
The Statute evidently confers upon the debtor the option to continue the possession of the sheriff, (in which event he would be the agent of the sheriff, ) or to defeat the seizure and possession of the sheriff altogether. Eor it is obvious, that if the debtor refuses to produce the property, the sheriff has no power to seize it again, and that if the sheriff has no power over the property, and no control, the debtor, corrclatively, must have entire control, and can as easily defeat the possession of the sheriff by selling and delivering the movables and executing his written conveyence of the immovables to a third party the day after executing the forthcoming- bond, as on the day appointed for the sale.
The bond was violated when Barham put it out of his power to make a valid delivery of the property to the sheriff, and when he and his vendees, Miltenberger & Go., 'forbid the sale, having no legal possession, the sheriff could not sell. There was then, a just cause on the part of the sheriff, to de
J. 3. Palmer & Go., are therefore entitled to the proceeds of the sale of the slaves sold upon their execution, unless the opponents have superior privileges and mortgages.
We concur with the District Judge that Brander, Williams & Go., as mortgage creditors, are entitled to be paid the balance of their judgment.
As to the other parties, they are entitled to bo paid only in the event a surplus is left, and according to the date of their seizures.
The deed to Shropshwe, as correctly observed by the District Judge, has no influence upon the decision of the case as between these parties.
We find, on examining the case to ascertain the costs and the rank of creditors, that there will only be sufficient to pay the costs, the judgment of Bramder, Williams & Go., and the execution of J. 3. Palmer & Go., disregarding’ the erroneous credit on the execution.
It is, therefore, ordered, adjudged and decreed, that so much of said judgment as decrees a preference to Brander, Williams & Go., out of the proceeds' of the slaves Thornton and Westley, for §267 45, be affirmed, and in other respects said judgment be avoided and reversed. And it is further ordered, that the residue of the price of said slaves, viz: $1,296 55, be paid to said J! 3-Parham & Go., to be credited upon their said execution for debt, interests and costs. And it is further ordered, that the oppositions of B. B. Briscoe and Eugene Parris, be dismissed, and that the costs of the appeal be equally bom by the said B. B. Briscoe, Eugene Parris and Joseph 3. Palmer & Go., and* that the costs of the lower court be also divided in the same manner-