Craig v. Burgess ( 1873 )

Opinion by

Judge Lindsay:

According to Craig’s own statements he was not a bona ñde purchaser. He bought the horse on the leased premises, knowing that Smith was the tenant of appellees. Under such a state of case he was bound to inquire as to whether or not the tenant was indebted to his landlord, and if so, whether they had an exclusive lien upon the horse.

If the horse had remained on the premises until the attachment was taken out, there could be no doubt but that the landlord’s lien would have been superior to Craig’s claim. Act February 16, 1858. That he was not found - on the premises was the result of Craig’s purchase and removal, under circumstances from which notice of appellees’ lien must be inferred.

Davis, for appellant. R. Mown, for appellees.

The court properly adjudged that the horse was subject to ap-pellees’ attachment, but erred in rendering judgment on the bond. .The bond does not conform to the provisions of Sec. 713, Civil Code; and as the property was taken under an attachment, ahd not under an execution or a distress warrant, it would have been improper to take the bond therein provided for. Neither is it in conformity to sec. 235, under the provisions of which it should have been taken. The court should have ordered a surrender of the horse, to be sold in case the remaining property did not sell for a sum sufficient to satisfy appellees’ claim for rent. In case appellant can not surrender the horse, then appellee’s remedy will be by suit on the bond.

Judgment reversed and cause remanded for further proceedings consistent with his opinion.