
    Garlands v. Jacobs &c.
    
    November, 1830.
    (Absent Coalter. J.)
    Indemnifying Bond — At Whose Relation Action Must Be Brought. — An indemnifying bond given to a. sheriff, under statute 1 R.ev. Code, ch. 184, § 25. 26, can only be put in suit at the relation oí the person having the legal ti tie to the property taken in execution and sold by the sheriff, not at the relation of any person having an equitable right therein.
    Hudson Kidd, by deed dated the 20th May 1820, and duly recorded the same day, conveyed sundry articles of personal property to Spottswood Garland, in trust, to secure a debt of 134 dollars due from Kidd to Whitehead & Co. An execution, sued out by James and William Garland against Kidd, was levied on the property mortgaged by the deed of trust, by Jacobs sheriff of Nelson; and James and William Garland with Spottswood Garland their surety, executed an indemnifying bond to Jacobs, to indemnify him for selling the property under the execution. Spottswood Garland the surety was (it seemed, though it was not expressly so stated in the record) the same person who was the trustee in Kidd’s deed for the security of the debt to Whitehead & Co.
    An action of debt (founded on the statute, 1 Rev. Code, ch. 134, | 25, 26, p. 533, $ 4,) was brought on this indemnifying bond, in the name of Jacobs the sheriff, at the relation and for the benefit of Whitehead & Co.’ against the *obligors James, William and Spottswood Garland, in the circuit court of Nelson. The declaration was in the form approved by this court in the case of Carrington v. Anderson, 5 Munf. 32, with this peculiarity, that the declaration shewed, that the legal title of the property, which the bond was taken to indemnify the sheriff for selling, was not in Whitehead & Co. the relators, but in Spottswood Garland, under Kidd’s deed of trust of May 1820. The defendants demurred generally to the declaration; and pleaded, that they had not broken the conditions of the bond, but had well and truly kept and performed the same; and an issue was made up on the plea. The court overruled the demurrer; and upon trial of the issue, the jury found for the plaintiff, and the court gave him judgment. The defendants appealed to this court.
    Johnson for the appellants: Leigh for the appellee.
    The only question was that which arose on the demurrer to the declaration, Whether Whitehead & Co. not having the legal title of the property, but only an equitable interest therein, could prosecute a suit on the indemnifying bond, in the sheriff’s name, at their relation and for their benefit?
    
      
      This and the two following cases are not printed in the exact order of time in which they were decided. — Note in Original Edition.
    
    
      
      See the principal case cited with approval in Poage v. Bell, 8 Leigh 607; foot-note to Leightons v. Hinchman, 1 Gratt. 156; Calahan v. Depriest, 13 Gratt. 276.
    
   GREEN, J.,

delivered the opinion of the court. The objection taken by the appellant’s counsel to the judgment, is perfectly well founded. The literal terms as well as the spirit of the statute, in force when the bond, upon which the action was brought, was executed, authorized no one to sue upon it but the person, who, if the statute had not been made, would have been capable of recovering in an action against the sheriff for the wrongful seizure and sale of the property taken in execution. To protect the sheriff against such action, by throwing the responsibility from him upon the plaintiff, was the sole purpose of the statute: and to extend it further, and to equitable rights or interests of any sort, which could not have been originally asserted in any action against the sheriff, would produce inextricable confusion, *as was justly urged in the argument of the appellant’s counsel. Besides, after the equitable claimant had recovered on the bond, the trustee upon the strength of his legal title, could recover the specific property from the purchaser under the sheriff’s sale.

The judgment is to be reversed, the demurrer sustained, and judgment entered for the defendants.  