
    Case 3 — PETITION EQUITY
    January 5.
    Spradlin v. Pieratt, &c.
    APPEAL PROM MORGAN CIRCUIT COURT.
    1. A SINGLE SALE-BOND PAYABLE JOINTLY TO THE PLAINTIPPS IN three executions, taken and returned by tbe sheriff, was not void, but was irregular, and might have been quashed by proper proceedings.
    2. After returning the executions and the irregular sale-bond made payable jointly to the plaintiffs in the three executions, the sheriff had no power, even by the consent of all the parties, to destroy the irregular bond and take separate bonds payable to each of the execution creditors, and by so doing impart to them the legal qualities of sale-bonds taken pursuant to the statute; and therefore the clerk had no legal authority to issue executions upon them. Executions issued upon them are unauthorized and void.
    Whether the bonds taken by the sheriff were good as common law bonds, is not decided.
    
      JNO. T. HAZELRIGG for appellant.
    The sheriff has no legal power, after a levy and sale under execution and the taking of sale-bond for the sum bid, and the return of the same to the clerk’s office, and after the return has been recorded by the clerk, to withdraw the sale-bond and accept others in lieu thereof. Such bonds can not support an execution. They might be enforceable by suit as common law bonds, but the sheriff had no legal right to take the bonds upon which the executions issued; and therefore the court below should have sustained the injunction.
    COOPER & HAVENS for appellees.
    The petition of appellant failed to state that “no injunction has been previously granted ” (Civil Code, sec. 314), and therefore the circuit court should have dissolved the injunction on motion of appellees, and should have refused to allow the amended petition to be filed to cover that defect. It was error to grant the injunction when no such allegation had been made, and an amendment could not cure it.
    That by consent of appellant and appellees the bond taken jointly to all of the appellees was destroyed, and bonds in lieu thereof were executed to each of the appellees in proportion to their respective debts, as should have been done at the time of the execution of the joint bond, etc., and that therefore, the consent of the parties making the law of this case, the new bonds should be held as good statutory bonds ; and cited'* 1 Greenleaf’s Ev., sec. 13, a; 1 Starkie on Ev., pp. 452, 516, 517, 518, 519; Story’s Equity, secs. 875, 1528; Bouvier’s Law Die., “Consent.”
   CHIEF JUSTICE LINDSAY

delivered the opinion of the court.

The sheriff had sold the property levied on by virtue of the three executions, and had returned them with the sale-bond to the clerk’s office. His power as sheriff to control the sale, and the bond taken under it, ceased with the return. The bond was not void, but was irregular because of the fact that it was taken for the aggregate amount and was made payable jointly to the three execution creditors. It might have been quashed by proper proceedings, and the purchaser might have been required, possibly, to restore the possession of the property to the sheriff.

'But the sheriff, having lost all conti’ol over the subject, could not, even with the consent of all the parties in interest, destroy the irregular bond and take separate bonds payable to each of the execution creditors, and by so doing impart to them the legal qualities of sale-bonds taken pursuant to the statute.

The bonds so taken may be supported by a good consideration, and it may be they are enforceable by actions in court, but they are not statutory sale-bonds, and therefore the clerk had no legal authority to issue executions upon them, and the executions so issued are unauthorized and void.

The judgment is reversed and the cause remanded with instructions to the chancellor to perpetually enjoin the appellees from attempting to collect said bonds by execution.  