(after stating the case). We do not pass upon the question as to the proper plaintiff to sue and whether the County, to whose use one moiety goes, should not be associated with the plaintiff, as no such point is made in the case.
The case was tried under the ruling of the Court, and in accordance with the terms of the issue, as if the sale was of *278real estate in fact and whether the statutory requirements were observed in conducting the proceedings for such sale. The case does not state under what circumstances, and by what arrangement with the owner of the soil, these articles were there placed. If for a temporary purpose, and to be removed when that was accomplished, the mill and other things would not merge their character as personalty in the land upon which they stood, and the property therein vest in the owner of the premises who assented to this temporary use, and the property would not thereby pass to the latter and constitute and become his improved real estate, as would be the effect if such erections and fixtures owned by one and placed upon his own premises and the title to the articles as unchanged personal estate would remain in the same proprietor. It is quite certain the Sheriff acted under the impression that he was levying on and selling personal property, as well from his designating it as such, as from his manner of selling in detached and separate articles, and so also the plaintiff considered his action by placing funds in an agent’s hands to buy in the property when sold.
Again, the case states that it was admitted “that the above property (that is, such as was seized,) belonged to the defendants in the execution,” thus discriminating between the title to the goods and the title to the land upon which they stood, and indicating some such understanding between the separate proprietors, as has been suggested.
But this does not furnish a means of escape from the penalty, for, as personal goods, they were advertised but nine days at the court house, though the full period of ten days, as pointed out in the statute, elsewhere.
The charge of the Court places the case before the jury as making the liability depend upon an effectual legal sale of the goods in passing the property to the purchaser, and instructed them if the bidding was in fact for the defendants, and their money was used in paying it, there was no sale in *279the sense of the statute and there would have been brought about no change of property. This would be so if another creditor seized and sold it, the sale not obstructing his access to the debtor’s property. But the levy put the property in the officer, and it would pass out of him by the sale, and if conveyed by deed the estate would pass to the purchaser, though he would hold in trust for the debtor. But the present case is not so strong, for the sales exceeded the sum deposited with Badgett the bidder and supposed agent by $123, while the- other partners after the bidding though on the same day supplied him with more money.
Aside from the legal consequences of such a sale we understand the statute as applying to it as well. It was in fact a sale, a passing of the property vested in the officer by the seizure from him to the purchaser and as equally demanding an observance of the mandate of the statute in making the sale as if a stranger bought, for it is not less official delinquency in the officer in either case, and the penalty is incurred when he proceeds to sell and does sell without a proper regard to the law.
There is error, and the judgment must be reversed and a new trial awarded.
Error.