
    HEARD, WHITE & THOMPSON et al. v. DUKE et al.
    
    1. Where an execution in favor of one person is levied upon the property of another, to which yet another files a claim, and for its production to answer the execution levied, executes a forthcoming bond, if the claim case be dismissed or the property thereafter found subject, and upon a suit upon the forthcoming bond a judgment be rendered in favor of the plaintiff in execution against the claimant and his surety, the moneys realized upon said last mentioned judgment should be credited upon the execution originally levied, whether the judgment upon which such execution issued was really a lien upon the property levied upon or not. The question as to whether or not as to that levy the property levied upon is subject, is concluded by the judgment on the claim case.
    2. In such a case, if a person holding the real title permits the claimant of record to appropriate the property levied upon to his own use, his remedy is against the claimant, and he does not by virtue of any supposed right to the property levied upon acquire any interest, either legal or equitable, in the proceeds of the judgment rendered in the suit upon the forthcoming bond.
    3. In view of the principles above announced, the demurrer to the plaintiffs’ petition should have been sustained, and, this being so, all subsequent proceedings had thereon were necessarily illegal.
    February 7, 1896.
    Equitable petition. Before Judge Olark. Newton superior court. March term, 1895.
    
      Gapers Dickson, for plaintiffs in error.
    
      E. F. Edwards, contra.
   Atkinson, Justice.

In the present case an execution was issued in favor of one of his judgment, creditors against a person who> as. the head of a family, had caused to be set apart for himself a homestead and exemption under the laws of this State. This execution was levied upon certain personal property .and growing crops which were alleged to be proceeds of the homestead estate, and consequently not subject to levy or sale. The property thus levied upon was claimed by a third person who gave a forthcoming bond therefor in the terms of the statute. At the trial of the issue joined upon the claim case, the claim was dismissed, and thereupon the sheriff brought an action upon the forthcoming bond against the claimants, for the use of the plaintiffs in execution. E'pon the institution of this suit, the head of the- family hied a petition in which he sought to enjoin its prosecution in favor of the plaintiffs in execution, alleging that the property levied upon was really his property, and was not subject to levy and sale; that the claimant had possessed himself of the- property and refused to account to him for its value; and prayed that the proceeds of any judgment recovered on the forthcoming bond should stand to his use, and not to the use of the plaintiffs in execution. The defendants demurred to this proceeding, upon the ground, among others, that the plaintiffs showed no sufficient reason for enjoining the suit, and did not allege any facts that would entitle them to the other relief prayed fox*. The court overruled the demurrer, and proceeded with the trial of the cause, which x*esxxlted in a verdict in favor of the plaintiffs, and to the overruling of a motion for a new trial the defendants excepted.

1. Was there equity in the plaintiffs’ petition, axxd did the facts alleged constitute a cause of actioxx against the defendants? Under the view we take of this proceeding, the plaintiffs alleged no privity between themselves and the makers of this bond. Whether or not the property levied on was originally subject to the execution, was a question between the person who claimed it axxd the plaintiffs in execxxtion. The claimants received it from the hands of the. levyixxg officer, and gave a forthcoming bond, conditioned for its production at the time and place of the sale, in the evexxt it should be foxxxxd subject. As between the claimant who executed that bond and the plaixxtiff ixx execution, the judgment dismissing the claim is equivalent to a finding of the property sxxbject. • It was the duty of the claimant in that case, when called xxpoxx to do so, to redeliver the property to the levyixxg officer, and Ins failure to-do this was a breach of duty, for which the levying officer-was authorized to recover agaixxst him for tire use of the plaintiffs in execution. The head of the faxxxily was no-party to that transaction — had no interest in it. The claimant under the terms of his bond owed to him xxo duty, and hence, as against him there, was no breach of duty. For that reason he could not have maintained an action on the boxxd for his own use, nor could the sheriff have maintained an action for his use. He had no legal title to the bond axxd no eqxxitable interest in its enfox*cexxxexxt, and, for' that reason, he had no claim, legal or equitable, upon any of the proceeds which might have arisen from the prosecution of that suit. Having no- interest,, he was an interloper, and ought not to have been heard by the circuit judge to object to the prosecution of the suit in the form in which it had been previously commenced. The moneys realized from such a suit should be legally credited upon the execution originally levied, even though the execution itself had no lien upon the property seized under it; and under no possible view of the case could the head of the family have any interest in it.

2-3. It can make no difference, so far as the interests of the parties to this controversy are concerned, that the head of the family permitted the claimant of the property levied on to appropriate the same to his own use. If the claimant improperly acquired possession under his claim, ■and improperly appropriated to his own use the property levied on, his wrongful act makes a question between himself and the head of the family, and the latter does not, by virtue of any supposed right to the property levied upon,, acquire any interest, legal or equitable, in the proceeds of a judgment which may be rendered in a suit upon the forthcoming bond. It follows, therefore; that he cannot maintain this action, that the circuit judge should have sustained the demurrer and dismissed the declaration; and all subse-quent proceedings are therefore necessarily illegal, and the judgment denying a new trial to defendants was erroneous.

Jlodgment reversed.  