
    Abram Crittenden v. David Lingle.
    1. When a constable makes a levy by virtue of an execution in his hands, upon property which is afterward replevied by a person claiming title to the property, by purchase from the judgment debtor prior to the* levy, the plaintiff in replevin on executing an undertaking as required by law, acquires aright to the possession of the property, and all the interest in it which had been acquired by such constable by virtue of his levy; and this, notwithstanding it should be found that the alleged purchase by the plaintiff in replevin, was fraudulent and void as against creditors.
    2. Such right of possession and interest is paramount to any right to be acquired by a subsequent levy on the same property under an execution against the same judgment debtor.
    3. When such subsequent levy is made and the officer sells the property, such plaintiff in replevin may maintain an action of replevin against the purchaser.
    Error to the court of common pleas of Fulton county. Reserved in the district court.
    Abram Crittenden, the plaintiff in error, in September, 1857, commenced an action of replevin, in the court of common pleas of Fulton county, against David Lingle, the defendant in error, to recover the possession of a horse. The plaintiff averred in Ms petition that he was the owner of the property, and entitled to its immediate possession.
    The defendant answered, denying the ownership of the plaintiff, and claiming himself to he the owner, and entitled to the possession of the horse.
    The cause was tried to a jury, and a verdict and judgment rendered in favor of the defendant.
    The plaintiff filed his motion for a new trial, which was overruled by the court; to which exception was taken.
    On the trial of the cause a bill of exceptions was taken, from which, among other things, it appears that the plaintiff gave evidence tending to prove that one Delos S. Crittenden, a resident of Fulton county, and then the owner of the horse, on or about the 3d day of February, 1857, gave a chattel mortgage on the horse to the plaintiff, to secure him for certain liabilities which he had incurred as surety for the said Delos S. Crittenden, and that said chattel mortgage was duly filed. That on the 15th day of February, 1857, one Azel Lake, having in his hands, as constable, an execution against Delos S. Crittenden, levied the same upon the horse, as the property of Delos S. Crittenden. That on the 25th day of February, 1857, the plaintiff (who lived in Michigan), by Delos S. Crittenden, commenced an action in replevin in the court of common pleas of Williams county, against Lake, to recover possession of the horse. That on the 3d day of March, 1857, the horse was replevied, and taken from the possession of Lake, the constable, an undertaking being given to the sheriff by the plaintiff, in all respects according to law. That said action.of replevin was still pending in the common pleas of Williams county. The defendant offered evidence tending to prove that on the. 5th March, 1857, two days after said horse had been so replevied, and wMle he was in possession of Delos S. Crittenden, the sheriff of Williams county having an execution in his hands against Delos S. Crittenden, levied the same upon the horse, advertised his sale, and on the 8th day of April, 1857, sold him to the defendant; and that about six months after the sale, the plaintiff replevied the horse in this action. ■
    
      The plaintiff requested the court to charge the jury, as follows:
    “ That if they should find that the said Delos S. Crittenden, was the lawful owner of said horse, at the time said constable made said levy, and the said levy was duly made, and that while it subsisted, the property had been taken from him under the proceedings in replevin, instituted in the court of common pleas of Williams county, and that said proceedings were all according to law, and that these were all in good faith, and without any fraud on the part of the present plaintiff; that then the subsequent levy and sale by the sheriff to the defendant, gavé to the defendant no title to the property under such sale.”
    The court refused to give such instructions, but charged the jury as follows:
    “ That if the jury find from the testimony that the original sale of the property from the said Delos S. Crittenden, to the plaintiff, was fraudulent and made for the purpose of defrauding creditors, said sale would be void as to execution creditors, and would give the plaintiff no title; and in that case the plaintiff could not acquire the title to said property under said replevin proceedings, so as to prevent the sheriff from making a levy thereon as the property of said Delos S. Crittenden.”
    To the refusal of the court to charge the jury as requested, and to the charge as given, the plaintiff excepted, and now assigns the same for error.
    
      Poster, Pratt, Sandy, Lemmon and Qommager, for plaintiff in error.
    
      Murray, Leland, Leggett, Brailey $• Greer, for defendant in error.
   Wilder, J.

In the court below the plaintiff claimed the right to recover, first, on the strength of his chattel mortgage, and, that failing, secondly, on the ground that in an action of replevin still pending in Williams county, in his favor against the constable, Azel Lake, he had caused the property to be replevied, and had given an undertaking in conformity with all the requirements of the law. The defendant claimed that the plaintiff, if he failed on his chattel mortgage, by reason of it being found to be fraudulent and void as against the creditors of Delos S. Crittenden, could take nothing by virtue of his proceeding in replevin against the constable, Azel Lake; and this latter seems to have been the view of the court below, and so its charge must have been understood by the jury.

In the ease of Smith v. McGregor, 10 Ohio St. Rep. 461, this court established the principle, that when one claiming the right of property and of possession to personal property, brings replevin against the person having the actual possession, and claiming property in the goods, causes the goods to be seized, and delivered to him, and giving a bond, with surety, as required by the statute, “ the bond takes the place of the property to the extent of the interest of the defendant in replevin,” and to that extent the plaintiff in replevin becomes invested with the property. Assuming that the chattel mortgage of the plaintiff was fraudulent and void as against creditors, the horse in controversy was subject to levy, as the property of Delos S. Crittenden, the judgment debtor. The constable, Lake, by virtue of his levy, acquired the right of possession, and a qualified property in the horse, an interest to the extent of the amount of his execution. If the plaintiff, in his action of replevin, caused the horse to be seized and delivered to him, or Delos, as his agent, and gave a bond such as is required by the statute, the right of possession, and the qualified property and interest, which Lake had acquired by his levy, passed to and became vested in the plaintiff. As the rights of Lake were paramount to any to be acquired by a subsequent levy, so, after his replevin and giving bond, the plaintiff s rights were paramount to any acquired by the subsequent levy by the sheriff of Williams county.

It is claimed in argument by the defendant’s counsel, that, inasmuch as fraud vitiates all that it touches,” although, as between the parties in the original action of replevin “ the plaintiff s bond took the place of the property,” yet the plaintiff acquired nothing, as against the other creditors. We do not think so. This .would be extending the consequences of his original fraudulent claim, to manifest injustice. The other creditors are not sufferers or prejudiced by that claim. Whatever interest remained above what was necessary to satisfy the execution first levied, could be reached by them as well as though the horse had continued in the hands of the constable. They could levy their executions, and in a proper mode make such levies available. If, therefore, the sheriff of Williams county could legally seize the horse, and sell and convey any interest in him, the title and interest conveyed to the purchaser would be subject to the plaintiff’s paramount claim.

But could the sheriff legally take the possession from the plaintiff, and sell and convey so as give the purchaser a right of possession as against the plaintiff? This latter question it is not necessary for us to decide in determining the case as submitted to us; but, as this question may arise on the retrial, we have considered it, and we, or at least a majority of the court, are of opinion that he could not. Had the horse remained in the possession of the constable, it is clear that the sheriff could not have taken him out of the constable’s hands, and, as the plaintiff acquired the same right of possession, qualified property and interest, that the constable had, neither could the sheriff take him from the plaintiff’s possession; nor could the purchaser at the sheriff’s sale, acquire a title protecting him against the plaintiff’s superior claim. The action of replevin was a rightful remedy for the plaintiff against the sheriff while the horse was in his possession, and against the purchaser after the sale and delivery to him.

The judgment of the common pleas must be reversed and the cause remanded.

Peck, C J., and Brinkerhoee and Scott, JJ., concurred.

Ranney, J., concurred in the reversal of the judgment, but dissented from the 3d proposition in the syllabus.  