
    Case 12 — PETITION EQUITY
    March 14.
    Gray’s Adm’r, &c. v. Patton’s Adm’r, &c.
    APPEAL PROM BOYD CIRCUIT COURT.
    1. An order of, attachment did not hind the property of the defendant while the order was in the hands of the sheriff, with instructions from plaintiff’s attorney that he was not to levy it until he told him so to do.
    2. A mortgage, executed while the attachment was held as above, created a lien which was superior to the lien created by the levy of the attachment two days after the mortgage was lodged for record.
    ED. F. DULIN por appellants.
    1. The direction to the sheriff not to levy the attachment, given by the plaintiffs’ attorney, was a waiver of any lien created 'by the attachment while in the hands of the sheriff, and subject to the direction not to levy (Deposit Bank of Cynthiana v. Berry’s adm’r, 2 Bush, 236); and therefore the lien created by the mortgage to appellants, ete., while the attachment was thus held, was superior to that created by the subsequent levy of the attachment.
    2. The levy of the attachment did not create any lien on the land, because the levy does not show that the sheriff posted a copy thereof on the land, or that he delivered a copy thereof to the occupant, as required by the Code, section 228.
    W. C. IRELAND por appellees.
    1. The levy of the attachment October 6,1860, created a lien on the land superior to the lien created by the mortgage executed October 2, 1860, and acknowledged, and lodged for record October 4, 1860, because the attachment was in the hands of the sheriff before and at the time of the execution of the mortgage. (Forman, &c. v. Proctor, &c., 9 B. Mon. 124; Million v. Riley, &e., 1 Dana, 360.)
    2. The direction given to the sheriff not to levy was given by the plaintiffs’ attorney, without his knowledge or consent, and therefore did not defeat his lien.
    3. The levy and return were sufficient. (Thomas v. Mahone, 9 Bush, 119.)
    4. Section 233 of the Civil Code, placed the attachment on the same footing of an exeeiition — creating a lien from the time it was placed in the hands of the sheriff.
    
      A. DUVALL AND IC. F. PRICHARD on same side in petition eor rehearing.
    1. Under section 233 of the Civil Code, a lien is given “from the time of the delivery of the order to the sheriff.”
    2. There can be no presumed delivery or acceptance of the mortgage, under the circumstances of this case, before the levy of the attachment. It does not appear that the mortgagees had any knowledge of the execution of the mortgage until after the levy of the attachment. Until it was delivered or accepted it was not valid. (See Bell v. Earners Bank, &c., 11 Bush, 3-|; Commonwealth, Thompson’s heirs, &c. v. Jackson, &c., 10 Bush, 428; Tulle v. Turner, 28 Texas.)
   CHIEF JUSTICE LINDSAY

delivered the opinion oe the court.

The order of attachment sued out by appellees was placed in the hands of the sheriff, and that fact indorsed on it by him on the 3d day of August, 1860, but the attorney who delivered it to the officer instructed him that he was not to levy it until he (the attorney) told him so to do. Appellants’ mortgage was duly executed, acknowledged, and lodged for record on the 4th day of October, 1860, and two days thereafter the order of attachment Avas levied on the mortgaged property. The question here involved is, whether the attachment or mortgage lien is superior?

Section 233, Myers’s CíaúI Code of Practice, provided, that “An order of attachment binds the defendant’s property in the county in which it might be seized under an execution against him from the time of the delivery of the order to the sheriff, in the same manner as an execution would bind it; and the lien of the plaintiff is completed upon any property or demand of the defendant by executing the order upon it in the manner directed in this article.”

“ A writ of fieri facias shall bind the estate of the defendant only from the time the same is delivered to the proper officer to execute.” (Sec. 1, art. 3, chap. 36, Rev. Stat., and .sec. 1, art. 2, chap. 38, Gen. Stat.)

In this case the order of attachment was not delivered to the sheriff to execute on the 3d day of August, and the record before us does not show that he was required, or even expected, to execute it until the 6th of October, two days subsequent to the creation of the mortgage lien; and until it did become his duty to execute it the estate of the defendant was not bound.

"We will not inquire whether the appellants were or not prejudiced by the instructions to the sheriff. It is sufficient that during the time he was acting under them the order of attachment did not bind the mortgaged property, and that the mortgage became effectual before the attachment was made operative by the withdrawal of the instructions. Nor can the consequences thus brought about be escaped because the attorney gave the instructions without express authority from his client. According to his own account of the transaction, he was acting in the interest of his client. He was not certain that the grounds of the attachment could be sustained. He merely suspected the defendant of intending to make a fraudulent disposition of his property, and delayed the levy in order to satisfy himself that his suspicions were well founded, and thus protect his client against complications-that might follow in case the defendant should contest the propriety and legality of its issuance. We can not say the attorney exceeded his implied powers in the management of his- client’s cause.

We are of opinion that the lien of the mortgagee is superior to that of the attaching creditor, and therefore must reverse the judgment of the court below, and remand the cause for a judgment conforming to this opinion.  