
    JOSEPH CHAMBERS vs. WILLIAM KELLY.
    The sale of attached property by a sheriff under an order 0/ a circuit judge in vacation, prima facia passes the title to the property to the purchaser, although the sheriff’s return in the attachment suit is insufficient.
    ERROR TO MARION CIRCUIT COURT.
    Glover & Campbell, for plaintiff.
    1st. Chambers having shown possession in himself, when the horse ivas forcibly taken from him by Kelley—must recover unless Kelly could show title in himself.
    2d. The evidence showed no title in Kelly, the record of foreign attachment was and is a nullity. Rov. code 1835 p. 77 see. 8, it must appear defendant’s property has been attached, Coboen vs. Douglass 1 Mo. Rop. 239; Anderson vs. Scott 2 Vol. Mo. Rep. p. 15; Manlsby vs. Farr 3 Mo R. 308; 5 Mo. R, 213—there was summons, here is no'return—this remedy is construed strictly. Hand 94; 1 Wash. 355; 2 lb. 350; 1 Mon. R. 108.
    3d. If the conveyance to Chambers was fraudulent against the creditors of Longnecker, it could give Kelly no power to beize the property except by some proceeding sufficient to give him title.
    4th. The court orred in not giving plaintiff' instructions, and in not finding a verdict for him.
    Dryden & Anderson, for defendant.
    1st. The verdict is sustained by the evidence in the cause. That the pretended claim of title in the horse by Chambers, was a scheme contrived and concocted between Longnecker and Chambers, the latter being the mere cats paw of the former—to hinder, delay, and defraud Kelly, a creditor of Longnecker, cannot be mistaken by any one who will read the evidence in the cause.
    2d. The damages were nominal—one cent only—not excessive the assessed value of the horse was 600 dollars, and he was found to be worth at the time he was replevied 700 or 800 dollars# See Anderson’s evidence. The plaintiff did not except to tho assessment of the value of the horse, but to the damages for the detention of tho horse. The assessed value is one thing, and damages for detention is another. Rev. code 1845 p. 922 sees. 8 & 9.
    3J, The measure of value in favor of Kelly is tho value of the horseat the timehe was replevied out of his possession. The defendant has his election to take the assessed value or the property. Re. code 1845 title replevin sec. 8 and9; Sproule &c. vs. Ford 3 Lit. Rep. 29; referred to in 1st P. Digest 232 sec. 29; Parker vs. Simmons 8 Metcalf’s Rep. 208.
    4th. The first instruction asked by tho plaintiff and refused by the court, was wrong, and ought not to have been given in this. 1st. Tho title to personal property levied on process is not vested in the sheriff by means of his return on the process, but by means of the levy, if he make no return at all, yet if he seize the property, this vests in him the title from the time of the seizure on the process. The only question is, did he levy? 2d. When a sheriff is commanded by a writ of attachment to levy the property of the defendant on such writ, and by his return thereon shews that ho “ executed the attachment by attaching a grey horse, &c ,” the presumption of law is that he attached the sanie “as (heproperty'1’ of him whose property he was commanded to attach, and not as the property of a stranger ; and the presumption need not to be supported liy any express statement in the return to that effect. The law presumes a compliance by its officers with all its requirements,
    5lh. The second instruction asked by plaintiff and refused by tho court was wrong, and ought not to have been given in this. 1st. That the matters and tilings in the record of the attach, ment sent, were and are sufficient to divest the title of Longnecker and vest the same in Kelly as against Longnecker, and all claiming under him conclusively. 2d. That it calls upon the court to decide the sufficiency of said record to divest the title of Longnecker in the mass without directing the attention of the court to any point of objection. 3d. It assumes the proposition of law, which is false, that you may take the same objection to the proceedings collaterally, that you could do in a diiect suit.
    4th. The objection to the admissibility of the attachment, record in evidence, were rightfully overruled. 1st. Tho objections urged, if true, could not bo taken advantage of in a collateral proceeding. 2d. The objeefion that the attachment issued before the bond was filed, is false, as proved by the record. See the record of the filings of the declaration, affidavit and bond. The dates of the bond and affidavit are apparently of the 12th Oct., but really of tho 1 Ith, having been changed at the time of execution from 12th to 11th. 3d. The second object ion to the admissibility of said record in evidence, is answered in tho answer to the first instruction asked bj’ the plaintiff. 4th. The third and fourth objections are untrue. 5th. The third and fourth objections are not well made in this, that they do not direct tho mind of the court to any particular irregularity or illegality. Tho court can't see the fault of which the objector complains. Cth. Tho proceedings in the attachment suit are binding on Longnecker, and all claiming under him until they are reversed.
    7th. No irregularity or defect in tho proceedings in the attachment suit after the sale of the horse to Kelly on the order of ibo judge of the court, (see the order and sheriff’s return of sale) can effect the title of Kelly to the horse—this sale substituted tho price of the horse for the horse himself in the hands of the sheriff. See secs. 40, 41 and 42, of the 1st article of the attachment law of 1835. Rev. code 1835 p, 81. After the sale, tho title to the horse tvas independent of the result of the attachment suit.
   Judge Ryland

delivered tbe opinion of tlie court.

This was an action of replevin commenced by Chambers in the Marion circuit court against the defendant William Kelly, for a horse called Sir Kirkland,” the horse was taken by the sheriff by virtue of tbe writ in the case, on the 3d of April 1843. At the August term 1848, the case was tried without a jury, having been by consent sub-, mitted to the court, and a verdict was found for defendant, and judg-, ment thereon.

To reverse the judgment, the plaintiff brings the case here by writ of error.

From the bill of exceptions, it appears that both plaintiff and defendant claimed the horse, under the same person, Longnecker. That defendant Kelly had previously to the commencement of this suit, sued the said Longnecker in attachment, and had attached the horse now in controversy, whilst the horse was in the possession of the said Joseph Chambers, the present plaintiff; that such proceedings were had in the attachment suit of Kelly vs. Longnecker, that the horse attached was sold by the sheriff under an order of the judge of the circuit court, in in which the suit was pending in pursuance of the statute, and that Kelly, who was the plaintiff in the attachment suit, and is now the defendant in this suit, purchased the said horse at the sale by the sheriff, under the- judges order as aforesaid.

The plaintiff, Chambers, claims the horse by purchase from Longnecker previous to Kelley’s attachment. To support the present action, Chambers shewed that the horse was taken from his possession by the writ of attachment in-favor of Kelley against Longnecker, and remained in Kelly’s possession until he was roplevined in the present action, and closed his case.

The defendant offered in evidence the transcript of the record- and. proceedings in the case of himself (Kelly) vs. Longnecker in attachment, under which and by virtue of the sale, he claimed property ; and. also offered evidence conducing to show that the sale from Longnecker to Chambers was fraudulent. The plaintiff objected to the introduction of the record in the attachment suit of Kelly vs. Longnecker in evidence., i*ut the court overruled the objection, and admitted, the evidence.

The following instructions were asked by the plaintiff, namely :

1st. “The plaintiff moved the court to decide, that if it appears from the record introduced in evidence in this cause, that the sheriff’s return on the writ of attachment in the suit of Kelly vs. Longnecker, and does not show that the horse “ Sir Kirkland ” was seized under said writ as the property of said Longnecker, that the said return was and is sufficient to divest the property of said Longnecker.

5-jd. That the matters and things in the said record of the suit at law, introduced by the defendant, are insufficient to divest the title of Longnecker, and vest the same in said Kelly.

3d. That if the evidence in this case, shews, that the- property in dispute belonged at first to Longnecker, and was by him sold to Anderson and Chambers, that Anderson, sold, his, interest to Chambers; that Chambers should recover in this case if Kelly withheld possession at the commencement of this suit, unless it shall appear that the transfers to Chambers were intended to defraud the creditors of Longnecker, and that Kelly obtained the right of Longnecker by the proceedings in the suit at law.55

The court refused to give the two first instructions, but gave the last] and this action of the court in refusing to give the first and second instructions, and in admitting the record of the attachment s.uit in evidence, are the errors relied on for the reversal of this judgment.

There is no error in admitting the record- of the attachment suit in evidence in this case ; the informality of the. sheriff’s return cannot effect the right of the purchaser of the property attached and sold under the order of the judge in vacation. It is hot competent for-third persons to. come in and object in this oblique manner to imperfections and inconsistencies in a sheriff’s return.

The sale of the attached property by the sheriff, under and, by virtue of the order of the circuit judge in vacation, does prima facia, pass the title of the property attached to^he purchaser.

The court therefore committed no error in refusing the 1st and 2d instructions as- asked for by the plaintiff.

The third instruction, which was given, put the case properly before the court, setting as a jury, and the evidence in my opinion amply sustains the finding of the court.

The court did properly overrule the motion for. anew trfol, and its judgment is affirmed'.  