Vicksburg Bank v. Little , 67 Miss. 159 ( 1889 )

Wools, C. J.,

delivered the opinion of the court.

By written agreement of counsel in the case, the sole question to be determined by us is this, viz : is an action maintainable on the indemnifying bond sued on ?

The usee was the purchaser, in good faith and for a valuable consideration, of the goods levied upon and sold in the original attachment proceedings in which the bond of indemnity was given, her purchase having been made and her title having been acquired after the levy, but before the sale, and these facts were well known by the officer holding the indemnifying bond.

Section 1754, of our code, requires any officer taking a bond of indemnity to see that it be conditioned to pay and satisfy to any person claiming title to the property levied upon all damages which such person may sustain in consequence of such seizure or sale, and the bond herein was so conditioned. That damage accrued to the usee, by reason of the sale of her property, is undeniable, and it appears to us to be wholly immaterial when the usee’s title was acquired,- only so it was acquired before the sale.

The usee was not a party to the oi’iginal attachment proceedings, nor was she required to make herself a party thereto. She had the option of propounding her claim in that proceeding, or of pursuing any other remedy given her by law. She elected to pursue the course taken by her in the case before us, as she clearly had the right to do. At common law, the usee might have brought her action against the officer for a conversion of her goods, and the effect of our statute is to substitute the obligors in the indemnifying bond in the room of the officer.

The action is maintainable, and the judgment of the court below is, accordingly, Affirmed.