
    Gift vs. Anderson.
    1 f personal property be sold by the sheriff or other officer without such property being present at the time and place of sale, the sale is void, unless the execution debtor shall waive the necessity of its presence.
    Greenlow recovered a judgment against Gift A fi. fa. was issued and levied on some slaves, the property of Gift, by the sheriff of Shelby county. The officer took' a bond from Gift for the delivery of the slaves. A portion of the slaves were delivered and the one in controversy was not delivered, but Gift requested the officer to sell her without her presence. The sheriff did sell her accordingly, and Anderson became the purchaser, and the slave came to his possession.
    Gift instituted this action of trover against Anderson to re- ' cover the value of the slave. The defendant pleaded not guilty, and the case, upon the above facts, was submitted to a jury in the Circuit Court of Shelby county, W. H. Loving, Special Judge, presiding. It was insisted, on the part of the plaintiff, that the sale was void, the slave not being present at the time and place of sale. But the presiding Judge was of a different opinion, and charged the jury that the general rule of law in. reference to sales of personal property by sheriffs was that the sale was void, if the property was not present and exhibited to the bidders, but this was a right secured to the execution debtors, which they might waive if they choose, and if the proof satisfied them that the sheriff was requested by the defendant to sell the slave without her presence, the sale was valid.
    The jury returned a verdict for the defendant; from which the plaintiff appealed.
    
      Daniel, for the plaintiff.
    
      V. D. 'Barry, for the defendant.
   Turley, J.

delivered the opinion of the court.

The only question presented in this case is, whether if the defendant in an execution agree that a sale of his personal ef-ffects may be made, without their being present at the sale, and such sale be made, the vendee obtains the legal title thereto.

The facts of the case are these: An execution had been issued against the plaintiff in error and was levied upon a negro child of infantine age, and he authorized the sheriff to expose the same to public sale without it. It was purchased by the defendant, who in some short time thereafter reduced it to possession, upon which this action of trover was brought. Plaintiff having lost the case in the Circuit Court, has prosecuted his appeal in the nature of a writ of error to this. Upon the whole view of the case, we are satisfied there is no error in the judgment below. For though it be unquestionable as a general rale, that personal property cannot be sold under process by a sheriff or other officer, without its actual presence at the time of the sale, yet it is equally true that this restriction is intended for the benefit merely of the owner; and if he agree that it may be done otherwise, he is not injured, and has no cause of complaint.

Judgment affirmed.  