
    
      M’Key &c. v. Garth.
    April, 1843,
    Richmond.
    [40 Am. Dec. 725.]
    (Absent Brooke, J.)
    Executions — Sale under* — Case at Bar. — Whilst on the one hand, where an officer holding two executions sells under the second, the title of the purchaser is good against the plaintiff in the first, and the remedy of the latter is against the officer, so on the other hand the purchaser at such sale cannot invoke the lien of the first execution, in aid of a title acquired at a sale made under the second. Therefore, where a slave was levied upon under a fi. fa. delivered to a constable before any conveyance of the slave by the debtor, and other executions issued after such conveyance, under which (and not under the first fi. fa.) the evidence tended to prove that the slave was sold, it was Hhx,D. in an action brought by the grantee in the conveyance against the purchaser at the sale, that the title of the purchaser must be referred to the process under which the sale was made. Accord. Eckhols v. Graham & others, 1 Call 492.
    By deed bearing date the 4th of June 1823 and admitted to record in the office of Al-bemarle county court on the same day, John Norvell conveyed to Andrew M’Key and Henry Chiles five slaves, one of whom was a girl named Mary, and another a boy named Randolph, and also other personal property, in trust for the purpose of securing the payment of certain debts therein mentioned.
    
      On the 6th of April 1824, M’Key and Chiles brought an action of detinue in the circuit court of Albemarle against William Garth, to recover Randolph. • The cause was tried in May 183S, upon the general issue.
    At the trial, the plaintiffs relied upon the deed o,f trust before mentioned, and the defendant relied upon a purchase at a constable’s sale made under a writ or writs of fieri facias against John Norvell, which he contended created a lien 34 upon the property before the date *of that deed, and overreached the title conveyed by it. In support of this ground, the defendant introduced a fieri facias issued the 25th of May 1823, by a justice of the peace for Albemarle county, in favour of Ben. Johnson against John Norvell for 11 dollars 27 cents with interest from the 27th of December 1821 till paid, and 30 cents costs, (which was directed to the constable of the said county,) with endorsements thereon by James Thomas the constable, shewing that it came to his hands on the day of its date, and was levied by him the 17th of June 1823 on one negro girl Mary and one boy Randolph; and the said defendant also introduced the deposition of Thomas the constable to the following effect: that on the 17th of June 1823, while, acting as constable of Albemarle, he levied the said execution (which had been in his hands from the 25th of May 1823) on the said boy Randolph; that' he took the boy home, intending to keep him until the day of sale, but he ran away, and could not be found until after the August court, which was the time appointed for the sale; that after that time, to wit, about the 15th of August 1823, he found the boy at work on Norvell’s plantation, and retook him for the same debt, and others which had afterwards come to his hands. The deposition continued as follows: “At the October court, he was regularly advertised and sold under that execution and others, and was purchased by William Garth at the price of 150 dollars. Before the day of sale the first execution ran out of date, and the magistrate renewed it, under which renewed one, in the name of Johnson, the sale was made; and the balance of .the money after paying that execution was applied to the payment of the remaining executions, and there was not enough.”
    After the cause had been argued and the jury sent out to consult of their verdict, they returned into court, and asked the court to instruct them upon this point: whether, if the fi. fa. of the 25th of 35 May 1823 had *been levied in due time by the constable upon the slave, and he had escaped and been retaken, the constable could, after the return day of the fi. fa., legally sell the said slave without a new execution? The court instructed the jury that no new execution was necessary in such case; that in truth, in such case, no new original execution could issue; that a venditioni exponas might have issued, but was not necessary; and that 'if the constable had applied for and obtained of the magistrate new executions, under the mistaken opinion that they were necessary, and had supposed himself selling under such new executions, the plaintiff in the first fi. fa. did not thereby lose the lien of the first levy, but the jury should regard the sale as having been made under and by virtue of that fi. fa. and the levy thereof, so as to give to the creditor therein the full benefit of the lien thereby created. To this opinion the plaintiffs excepted.
    • A verdict being found and judgment rendered for the defendant, on the petition of the plaintiffs a supersedeas was awarded.
    Grattan for
    Although, when a fieri facias has been levied, a second fieri facias in the same case is so far illegal that it may be quashed on the motion of the defendant, yet if the same be not quashed, but the officer proceed to levy and sell under it, the levy and sale are valid and cannot be questioned by third persons; and in such case the lien of the first execution is lost, and neither the execution creditor nor any third person can avail himself of it. Rckhols v. Graham and others, 1 Call 492. Here the fact appears by the deposition of the officer, that he levied and sold under the second fieri facias in favour of Johnson, and under other executions, all of which, including Johnson’s second fi. fa., came to the hands of the officer after the deed (under which the plaintiffs claim) 36 had been made and recorded. *The officer does not pretend that he sold under Johnson’s first fi. fa. And it being well settled that an officer, having two executions in his hands, may sell under both or either at his pleasure, the purchaser must hold his title as he receives it from the officer, whatever may be the rights of the plaintiff in the first execution to the proceeds of sale..
    Peyton for defendant.
    Although, in the abstraer prefixed bjr the reporter to the case of Eckhols v. Graham & others, it is stated that ‘ ‘if plaintiff sues a second execution before the property taken under the first is disposed of, he waives the first, and destroys the lien on the property taken under the first,” yet in truth no such question arose or was discussed in that case. There the lien created by the levy of the first execution was gone; but it was because of the execution of the forthcoming bond, and the restoration of the property to Bandy: and Graham and Trigg succeeded in virtue of their purchase evidenced by their bill of sale, and not in virtue of Trigg’s purchase at the sheriff’s sale. It cannot be fairly argued from this adjudication, that the seizure and sale under a void and illegal process will be valid. Here the second execution was sued out by the constable without authority from the plaintiff, and the question in the court below was, whether the right of a plaintiff could be affected, without his knowledge or consent, by the illegal and unauthorized act of the constable. It cannot be, that from such an act as this, a waiver by the plaintiff of his right is to be presumed. To affect a party on the ground of waiver, he must not only do the act relied upon as such, but must also be fully cognizant, at the time, of his rights in the matter.
    Grattan in reply.
    The case of Eckhols v. Graham and others shews ' that the court placed its decision upon the ground that another execution had issued; and it 37 is *a very strong authority. Por the second execution issued after a forthcoming bond had been taken, and the defendant might certain^' have had this second execution quashed as improperly issued. Yet the court held that the issuing the second execution was a discharge of the lien created by the first.
    The constable could only take out the second execution as the agent of the creditor; the justice could only give it to him as agent: and the creditor has sanctioned the act of the constable subsequently, if not before, by receiving the money made by a sale under it. The fact is, that in these cases of warrants before justices, the practice is for the constable to act as the agent of the plaintiff; and this practice is recognized by the legislature. Sess. Acts 1825-6, ch. 19, p. 21; Suppl. to Rev. Code, p. 201.
    But suppose the lien of the first execution had continued after the second issued; is the purchaser entitled to the benefit of that lien? The cases clearly establish that there may be a valid sale by a sheriff under a second execution, though he has in his hands at the time an execution entitled to be preferred; and that in such case the purchaser under the second execution will hold the property against the plaintiff in the first, and the only remedy of the latter will be against the sheriff. Smallcomb v. Cross &c., 1 Ed. Raym. 251; Hutchinson v. Johnston, 1 T. R. 729. If then Johnson’s second fi. fa. was, as the judge instructed the jury, void, and the sale under it void also, yet as there were other executions under which the sale was made, and the evidence of the officer shews that he did not sell under Jonhson’s first fi. fa., the sale under those other executions was valid, and the purchaser must be considered as holding under them. Whether, therefore, Johnson’s second fi. fa. was valid or void, the purchaser cannot be considered as purchasing under his first fi. fa.
    
      
      See monographic note on “Executions” appended to Paine, Surv., &c., v. Tutwiler, 27 Gratt. 440.
    
   *AEGEN, J.,

delivered the following as the opinion of the court:

This court is of opinion that as evidence had been introduced tending to prove that a second execution had been taken out by the constable, under which, and other executions in his hands, the sale was made; however the question might have been as to the lien of the first execution, in a controversy between the plaintiff in said execution (alleging that the second execution was taken out without his consent) and the constable, yet in this action between the purchaser at the sale and a claimant of the property, the title of the purchaser must be referred to the process under which the sale was made. That whilst on the one hand, where the officer holding two executions sells under the second, the title of the purchaser is good against the plaintiff in the first, and the remedy of the latter is against the officer, so on the other hand the purchaser at such sale cannot invoke the lien of the first execution, in aid of a title acquired at a sale made under the second. The court therefore erred in instructing the jury that they must regard the sale as having been made under and by virtue of the original fi. fa., though they might have been satisfied, from the evidence, that the sale was in fact made under and by virtue of the second fi. fa. and other executions in the hands of the officer.

The judgment is therefore reversed and the cause remanded, with instructions to set aside the verdict and award a new trial of the issue, on which so much of the said instruction as is herein pronounced to be erroneous is not to be repeated.  