
    James Walker vs. Robert Shotwell et al.
    It is not a fatal objection to a forthcoming bond, that it recites that the execution, under which the levy was made and the bond taken, was against S. and W., when, in fact, it was against S. alone; S. and his sureties for the forthcoming of the property being' the only parties to the bond.
    Nor, in such case, will it make any difference that the party against whom the execution was, was insolvent, and the other against whom it was not was solvent; the sureties on the bond were sureties of the party whose property was levied on, and who was the principal in the bond, and not of the other.
    It is a sufficient levy to uphold a forthcoming bond, that, without an actual seizure of the property by the sheriff, the principal in the bond inserts in it the description of the property, procures the signatures of the sureties with his own, and in that condition delivers the bond to the sheriff.
    A forthcoming bond is not void, because the property levied on was under mortgage at the time of the levy ; though it seems, if the obligors in the bond were prevented from delivering it according to the terms of the bond, by reason of the action of the mortgage creditor, they would be released from their liability.
    It seems it would he a fraud upon the creditor to allow parties to a forthcoming bond, who had themselves voluntarily filled up the bond with property not liable to sale, to set up this as an excuse for a failure to deliver the property.
    It is not a fraud upon the sureties to a forthcoming bond, given by S. as principal, that the bond recited that the execution was against W. and S., and the sheriff did not disclose the fact that it was against S. alone ; yet if such omission were a fraud, without proof that the creditor was implicated in it, it would not discharge the bond.
    On appeal from the circuit court of Madison county, on the chancery side thereof; Hon. Robert C. Perry, judge.
    Robert Shotwell, John R. B. Jones, and Jackson Smith, filed their bill against James Walker and the administrators of Williamson Smith and Jesse Brown, in which they allege, that on the 28th day of February, 1844, they executed, as securities for Williamson Smith, a bond, purporting to be a forthcoming bond, and delivered it to Brown as deputy sheriff. That said bond recites the service of an execution in favor of James Walker against Williamson Smith and John Webb, on the property of Smith, to wit, two slaves, Jordan and Ellen; that, at the time of the execution and delivery of said supposed bond, said Brown did not inform them that the execution was not in fact against Webb and Smith, and against Smith alone, and that they were ignorant that it was against Smith alone; that Webb was solvent and Smith insolvent; that no actual levy was made on said slaves by the sheriff; that when the supposed bond was executed the sheriff had never seen them, but that their names had been previously inserted in it by Smith; and that the fact that no levy had been made, was not made known to them by Brown, but concealed from them by him when they executed the supposed bond, and they were ignorant of the fact that no levy had been made; that this was a fraud on them; they did not know the above fact until after the return term of the execution, under color of which, said supposed bond was taken.
    That, in 1842, Williamson Smith and Gabriel C. Smith executed a mortgage to the bank of Tennessee and others, to secure the payment of divers sums of money on said slaves and other property; that this mortgage remains undischarged to a large amount, exceeding ten times the value of said two slaves.
    That an execution issued on said forthcoming bond, and other executions against Smith, has been lately levied by the sheriff on said slaves and other slaves embraced in said mortgage, as the property of Williamson Smith; and that some of the mortgagees, to prevent a sale, had filed their bill in the superior court of chancery against Walker and others, and that an injunction had been awarded, and was then in full force.
    That after this last levy on said two slaves, and after the emanation of the injunction, and after the same came into the hands of the sheriff, he proceeded to levy said execution on four slaves of the complainant, Jones, which slaves are of peculiar value to him above a mere compensation in damages; that, although the levy was made on said four slaves under other executions, as well as the execution of'Walker, yet these other executions have been settled in such way, that the present beneficiaries in them have directed, or will direct, (as complainants believe,) the sheriff to redeliver them to Jones; and that the sheriff now holds them under pretence alone of the execution of Walker, which issued on said supposed forthcoming bond.
    Jones and Jackson Smith charge, that at the time they executed said forthcoming bond, they did not know of the existence of said mortgage, and that they were ignorant of it at the return term of the execution under which it was taken.
    Shotwell charges, that, although he knew at that time that such a mortgage had been written, (and written by. himself,) yet he did not know that it had been executed and delivered, or even executed; that he did not know at that time, nor till after the return term of said execution, that said two slaves aforesaid were included in it, as he paid no attention to the property said to have been levied upon when he signed said supposed forthcoming bond, and he had no knowledge at that time that said mortgage was in full force and bound said slaves; that, if he had even noticed the names of said slaves, he believes he would not have remembered that slaves of the same names were included in said mortgage.
    They all say that the facts, as they existed, were not made known to them by the sheriff, when they executed said supposed forthcoming bond, and charge that they were deceived; and that the taking said sppposed forthcoming bond by Brown, the deputy sheriff, under the circumstances, was a fraud on them, and that the same is without consideration, illegal, and void, and that, unless the same is cancelled and delivered up, they fear and believe they will be harassed with proceedings under it from time to time. They insist, that even if there was a levy on said two slaves, (which they deny,) that the same was void, as an equity of redemption is not the subject of levy.
    The prayer is, that the sale of Jones’s four slaves be enjoined, and that they be delivered up to him, unless the sheriff should hold them under the other executions; that said supposed forthcoming bond be cancelled and delivered up, and the judgment thereon perpetually enjoined, and for general relief. The injunction was granted.
    James Walker demurred to the bill generally, and the circuit court overruled the demurrer, and he appealed to this court.
    
      A. H. Handy, for the appellant, contended,
    1. That the forthcoming bond, on which the complainants were proceeded against, was not void, because it recites a judgment against Smith and Webb, when the judgment was against Smith alone. He cited 11 S. & M. 458; lb. 347; 6 How. 513; 5 lb. 239.
    2. That it was not void, because the property purporting to be levied on, and for the forthcoming of which it was given, was under mortgage and not subject, to levy. He cited and reviewed Long v. U. 8. Bank, 1 Freem.,Ch. Rep. 375.
    3. That there then was no actual levy by the sheriff, by seizing or actually taking possession of the property, for which the bond was given, did not vitiate the bond; there was a constructive levy. 10 S. & M. 9.
    4. That it was not void for fraud, because the deputy sheriff, when he took the bond reciting a judgment against Smith and Webb, did not inform the sureties that the judgment was against Smith alone; and because he concealed from them that he had made no actual levy. These facts did not amount to fraud.
    Mr. Handy discussed these points at length, and insisted that they furnished no ground for relief.
    
      George Calhoun, for appellees.
    1. The forthcoming bond is void, because it was not taken upon any judgment whatever. There is no judgment against Smith and Webb.
    
      2. It is void, because the execution under which it was taken was not levied upon the property of the defendant. The property was under mortgage, and was not the subject of. levy, as is expressly decided by this court. 5 How. 71.
    3. It is alleged in the bill, that there was in fact no actual levy; that the sheriff had never seen the slaves; and this is admitted by the demurrer. The mere inserting in a forthcoming bond, or indorsing on an execution, a description of property as levied upon, without even seeing the property, the sheriff neither seizing it, nor being in a situation which would enable him to reduce it to possession, does not constitute a levy. See Banks v. Evans, 10 S. & M. 57; 3 Wend. R. 446; 14 lb. 123; 16 Johns. R. 288.
    4. The bond, as to the securities, was without consideration. The right of the securities to deliver the property on the day of sale, forms the consideration upon which forthcoming bonds are given. This right to deliver is fully held in 3 Munf. 438, et seq. And this very point is settled by chancellor Buckner, in the case of Long v. The U. 8. Bank, 1 Freem. Ch. Rep. 375.
    
      5. The forthcoming bond is void, for actual fraud on the part of the deputy sheriff.
    On this point, Mr. Calhoun reviewed the allegations of the bill.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

This bill was filed to obtain relief against a statutory judgment, which accrued by virtue of the forfeiture of a forthcoming bond. The first ground made by the bill is, that the bond recites that the levy was made under an execution in favor of Walker against Williamson Smith and John Webb, when in truth the execution was against Smith.

The consideration of such a bond, is the redelivery of the property levied on. To sustain it, there must be an execution which authorized the seizure. Then there is a sufficient consideration. In this instance there was an execution in favor of Walker against Smith, and Smith’s property was levied on. Here then was a valid execution and a valid levy. The mere, recital in the bond, that the execution was against Webb and Smith, does not vitiate the bond; that is no part of the obligation, nor can this misrecital in ,any way affect these parties. If the execution had been against two as recited, if one gave the bond, he and his sureties alone are bound, the party who did not join being thereby discharged. The case of Wilkinson v. McLochlin & Co., (1 Call, 49,) was a stronger case against the validity of the bond than this; the name of one of the plaintiffs in execution was omitted in the bond, and yet it was held good. These parties were not sureties for Webb, and his solvency, and the insolvency of Smith for whom they were sureties, cannot be ground of relief.

The next ground is, that there was no actuál levy, but the names of the negroes were inserted by Smith in the bond, in which condition it was handed to the sheriff. We cannot say that this was not equivalent to an actual seizure. It was an admission of a levy by the defendant in execution, and he could not be heard to object on this ground. An actual seizure is necessary to change the property, and in a controversy between the sheriff and a claimant of the property, it is necessary to prove an actual seizure. But the right to personal property, and the right of possession will pass by a constructive delivery, and this was in effect such delivery. In the case of Long v. U. S. Bank, (Freem. Ch. Rep. 375,) Chancellor Buckner decided that a bond given for fictitious property, or without a substantial levy, was void. The bond in that case was delivered in blank. Here there was a substantial levy.

In the next place, it is insisted that the bond was void because the negroes were subject to an unsatisfied mortgage. This objection is answered by the decision in Lyme v. Montague, (4 Hen. & Munf. 180,) in which it was held, that the bond was good if the defendant had a qualified property. Neither the principal nor his sureties can set up an outstanding title to defeat their own obligation to deliver the property, unless such title has been asserted so as to prevent a delivery. It was the business of the sureties to inform themselves as to the condition of the property, inasmuch as they had a right to deliver it in discharge of the bond. But the mortgage did not prevent the delivery. Whether the sheriff could have sold or not, is' a different question. It might operate as a fraud upon the execution creditor, to release parties to a forthcoming bond, who had voluntarily filled up the bond with property not liable to sale, and then to permit them to set up this as an excuse for a failure to deliver.

The last objection is, that it was a fraud in the deputy sheriff, not to inform them that the execution was against Smith alone. It was their business to inform themselves on this subject. The bond may have been filled up entirely by Smith, as it seems to have been delivered to him at least partly in blank. The facts charged do not amount to fraud even if true; but if they did, the plaintiff in execution is not implicated; nor indeed is there any charge of fraud as to him. If fraud was committed by the principal in the bond, he is not affected by it.

Decree reversed, and bill dismissed.  