
    LEWIS AMIS, JR., v. JOHN DREER.
    Jackson,
    September Term, 1875.
    1. STAYOR OE EXECUTION OP JUDGMENT. No* discharged "by levy subject to prior levy, when.
    A stayor is not discharged by a levy on the principal’s properly subject to prior levies, when there is no surplus from a valid sale under such prior levies. [See note 7 under sec. 4700 of the Code.]
    2. SAME. Same. Waiver of advertisement of sale under prior levy, no discharge.
    Parties interested under an execution may agree to a sale without advertisement, and the sale will be valid, and pass the title. Such sale will not discharge a stayor of another execution subsequently levied on the property subject to such prior leivy. [See Code, secs. 4767, 4769, 4812, 3841.]
    3. SAME. Same. Same. Officer’s collusion and insufficient return, no discharge.
    I!; tbe officer is guilty of collusion in selling' without advertisement under a waiver thereof, or .makes himself liable for an insufficient return on the last execution, the execution creditor is not bound to pursue Ms remedies ag'ainst the officer for the benefit of the stayor, and the stayor is. not thereby discharged. [See note 7 under see. 4790 of the Code.]
   McFarland, J.,

delivered tbe opinion of tbe court:

Plaintiff was stayor on a judgment in favor of tbe defendant against one Tbos. O. Smith. He claims that be is discharged by reason of tbe fact that am. execution was levied on property of Smith, tbe principal, of value sufficient to satisfy tbe same, which has not been properly accounted fox.

It appears that tbe levy on Smith’s property was subject to prior levies, and that tlie property was sold under tbe prior levies, leaving no surplus. This sufficiently accounts for tbe property, if tbe sale was valid.

It is said there was no advertisement, but the parties interested under the first execution agreed to sell without advertisement. This would mate the sale of the property valid, and pass the title, and there could be no sale under the latter levies.

If the officer was guilty of collusion, or made himself liable for an insufficient return on the last execution, the creditor was not bound to pursue his remedies ag’ainst him, .and the stay or was not thereby discharged.

Judgment against the plaintiff is affirmed.  