
    Fugate vs Clarkson.
    Replevin.
    Error to the Pendleton Circuit.
    
      Case 18.
    
      Mortgagor and Mortgagee. Replevin.
    
    
      September 22.
    Question stated.
    Mortgagee cannot maintain replevin against a sheriff who takes the mortgagee’s property out of the possession of the mortgagor by-virtue ofawritof fi.fa. against the mortgagor before a sale thereof, though sheriff may threaten to sell it absolutely withoutregard to the mortgage.
    In such ease though the possession of the mortgagor may be deemed that ofthemortgagee, yet sheriff has a. legal right to take the possessioraofmortgaged property andhold ituntil after sale, anduntil afteran illegal sale or some other toi
      tious act which would make him a trespasser db initio, mortgagee cannot divest him of the possession.
   Chief Justice Robertson

delivered the Opinion of the Court.

In this case the only question is that which was stated but left undecided in McIsaacs vs Hobbs, 8th Dana, 271, and that is, whether a mortgagee, entitled to the possession of movable property remaining with his mortgagor, may maintain an action of replevin therefor against a sheriff who, though apprised of the mortgage, had taken it under a fi. fa. as the absolute property of the mortgagor, and had avowed his determination to sell it without regard to the mortgagee’s claim of title.

And this point being now, for the first time, fairly pre. sented for judicial decision, we are of the opinion that the facts just stated are insufficient for maintaining the action.

Although the mortgagor’s possession, in this case, might be deemed that of the mortgagee, yet the equity of redemption being nevertheless liable to sale under the execution, the sheriff had a legal right to take the property into his possession and hold it until after asale according to law; and, until after an illegal sale or some other tortious act making the officer a trespasser ab initio, the mortgagee can have no right to divest him of his possession. His 'expressed determination to disregard the mortgage cannot be judicially recognized as an illegal act or sufficient proof that he had violated the law in taking the property, •or would, in fact, violate it in the sale. Notwithstanding such declaration, he might sell subject to the mortgage, as he would still have the indisputable right to do, and ought to do if the mortgagee’s title be good against the execution creditor.

. Morehead cf- Reed for plaintiff; Trimble for defendant.

In such a case, if the mortgagee desire the possession of the property, instead of interposing to prevent a sale by the officer who might sell legally and without any wrong to him, he should wait until the sale, when, if the equity of redemption only shall have been sold, he will be entitled to restitution of possession from the sheriff, and if the absolute title shall have been illegally sold, he may replevy the property either as against the sheriff, before delivery to the purchaser, or as against the latter if he shall have taken it wrongfully into his possession.

Any other doctrine would seem to us to be not only unnecessary for the security of the mortgagee, but subversive of justice and inconsistent with the policy and analogies of the law.

Wherefore, as'the decision of the Circuit Court is in-' consistent with this opinion, the judgment must be reversed, and the cause remanded with instruction to render judgment for the sheriff on the special verdict.  