
    Pilcher v. Hickman.
    
      Action of Trover against Sheriff.
    
    [Decided February 13, 1902.]
    1. Trover; when sheriff not guilty of conversion of property levied on under execution. — Where property levied on by a sheriff under execution is in the possession of the defendant in execution, it is prima facie his, and subject to the levy if the officer knows nothing to rebut this presumption, and the sheriff cannot be charged with conversion thereof, unless, after notice that it belongs to another, he insists upon retaining possession of it and refuses to deliver it to the owner.
    2. Levy of execution Toy sheriff; demand of bond of indemnity under Code, section 1903. — Where, at the time of a levy of execution upon personal property, it is in the possession of defendant in the execution, it is presumptively defendant’s property, and the sneriff, in the absence of notice of anything to rebut the presumption, is not authorized to demand an indemnifying bond from plaintiff in the execution, or to refuse to make the levy or release it when made, upon the plaintiff’s refusal to indemnify him, on demand.
    3. Sheriff; when liable in trespass or trover for sale under execution. — Where a sheriff, after the levy of execution on personal property and before its sale thereunder, acquires knowledge of facts which, if followed up, would disclose that the property was not in fact the property of the defendant in execution, and proceeds with the sale , notwithstanding such knowledge on his part, he is liable to the true owner in trespass or trover.
    Appeal from Henry Circuit Court.
    Tried before Hon. John P. Hubbard.
    Action of trover by T. B. Hickman against J. M. Pilcher. The defendant pleaded the general issue and justification under process, in the form of an execution issued upon a judgment against one T. H. Hickman, plaintiff’s father, which was levied by defendant as sheriff upon a mule in the possession of said T. H. Hickman, and the mule was duly sold thereunder. The opinion states the facts. From a judgment for plaintiff defendant appeals, assigning as error the refusal of the general affirmative charge in his behalf.
    W. O. Long, for appellant,
    cited Burgin v. liaplee, 100 Ala. 433, 437; Fortner v. Flannagan, 3 Porter 257; McGowan v. Young, 2 Stew. & Port. 160; Code, § 1807; Wright v. Spencer, 1 Stew. 576; Word v. Deadman, 124 Ala. 288; Meyer v. Hearst, 75 Ala. 390; Albright V. Mills, 86 Ala. 324; Wilson v. Sawyer, 37 Ala. 631.
    Espy, Farmer & Espy, contra.
    
    No brief came to the hands of the Reporter.
   TYSON, J.

— Action of trover, originally commenced against sheriff and purchaser at execution sale. The complaint ivas amended by striking out the purchaser as party defendant and judgment was obtained against the other defendant, Avho prosecutes this appeal.

The evidence shows, without dispute, that the execution was regular on its face and issued out of the circuit court of Henry county; and that it was levied upon the mule found in the possession of the plaintiff’s father, who was the defendant in execution. That the mule bad been in bis possession ever since tbe plaintiff claims to' bave owned it — some ten or twelve monbs. After tbe levy, the defendant in this suit took possession of tbe mule and sold it under tbe execution as tbe property of tbe defendant in the writ. It was admitted by plaintiff that be saw tbe mule being taken under tbe writ from the possession of bis father and was present when it was sold under execution. There was no evidence that the sheriff bad any knowledge of tbe plaintiff’s claim to tbe mule or that plaintiff gave him any notice whatever of bis claim. We bave noted tbe fact of tbe knowledge of tbe plaintiff of tbe levy and sale, not for tbe purpose of working out an estoppel against him in this action against tbe sheriff, but simply to show that be bad tbe opportunity of giving notice that .the mule was bis, and at least presumptively showing that tbe sheriff bad no knowledge of bis claim, but relied upon the father’s possession as evidence of bis ownership. Whether bis conduct would work an estoppel against him as against tbe purchaser we need not and do not decide. Having found tbe mule in tbe possession of the father, the defendant in execution, tbe sheriff bad tbe right, in the absence of knowledge or information to tbe contrary, to presume that be was tbe owner of it, and it was bis duty to levy upon it as tbe property of such defendant (Murfree on Sheriffs, § 968) ; and, of course, it was bis duty to sell it unless be came into tbe posession of a knowledge of facts before tbe sale which if followed up would bavie disclosed that tbe property did not belong to tbe father. Doubtless if after acquiring such information, be then proceeded with tbe sale, he ■ could be ■ made liable in trespass or trover. Nor could this duty, under tbe undisputed facts of this case, bave been shirked by him so as to avoid responsibility to the plaintiff in execution by resort to a demand for bond of indemnity under section 1903 of tbe Code. It is only when a reasonable doubt exists whether tbe personal property levied on belongs to defendant in execution, that such bond can be demanded. Where, as here, tbe defendant in the writ was tbe prima facie owner, in tbe absence of anything to’ rebut tbe presumption, tbe sheriff would have had no right to refuse to make the levy or to release it after made, had the plaintiff refused to have indemnified him upon demand. So then the facts of this case clearly bring it directly within the principle laid down by Mr. Freeman: “If the property is in possession of the defendant in execution, it is prima facie his. The officer may, therefore, levy upon it, if he knows nothing to rebut this presumption, and cannot be charged as guilty of a conversion, unless, after notice that it belongs to another, he insists upon retaining possession of it and refuses to deliver it to the owner.” — 2 Freeman on Executions (3rd ed.) § 254.

The affirmative charge requested by defendant should have bjeen given.

Keversed and remanded.  