HARALSON, J. —
1. As to the liability of the sheriff for selling the property under the circumstances and conditions alleged, Mr. Freeman says, as to the proper notice of sale: “So far as the courts have spoken upon the subject, they have held that the selling of property under execution by an officer without- previously giving the notice of sale required by the statute, is such misconduct that the officer is no longer entitled to the protection of liis writ. The result of this must be, that if sued in trespass, his defense cannot rest upon the process, nor can it be used in diminution of damages.’’ 2 Freeman on Ex., p. 1659, § 286.
In Wright v. Spencer, 1 Stew. 577, this court, touching this matter said: “A misfeasance is the improper performance of some act- which might have been lawfully done. The defendant- here [the sheriff] had the right to take and sell the property, but was bound to do it as directed by law. If, then, he sold without the legal advertisement, it was the improper performance of an act which might have been lawfully done, and he was, according to strict definition, guilty of misfeasance. By this he was dismantled of his protection, and made a trespasser from the beginning. There can be no question but that he was liable to the action of trespass.”—Nathan v. Shivers, 71 Ala. 121; Hartshorn v. Williams, 31 Ala. 154.
Connected with this complaint, and interwoven with it, is the averment and proof, that the goods, — other than the soda fountain, which latter article was not mentioned at all in the advertisement of sale which was made, — «’ere sold by the sheriff at a place other and different and remote from the place at which they were advertised to be sold. The result is, that, having regard to the purpose of an advertisement of sale, such as [100]*100the law requires, the goods were sold without legal notice.—Code, §§ 1905, 1906. It was the duty of the sheriff to ha.ve advertised the time and place of sale, and to have sold at the place designated in the notice. Certainly, it was a violation of duty, to advertise to sell at a designated place, and, 'afterwards, make the sale to another and remote place.—2 Freeman on Ex., §§ 290, 302; Croker on Sheriffs, § 484.
Furthermore, the soda fountain was not present, with the other goods, when they and i|t were sold, hut nearly a block away in the store where it was levied on, and not in view of the sheriff, bidders or those present at the sale. The sales of personal property under execution should always take place, at or near the place where the property is, when sold. Such sales must result in some, if not great sacrifice of the property, unless those present desiring to buy have opportunity to see and examine the property offered for sale.—2 Freeman on Ex., § 290, and authorities’ in n. 4; Murfree on Sheriffs, § 994; Croker on Sheriffs, § 493; Andrews v. Keith, 34 Ala. 728; Foster v. Mabe, 4 Ala. 402.
2. The evidence shows, that the property was sold in mass, including said soda fountain, or in what is called a “lumping sale,” which, in a case of sale of personal property under execution, can rarely be justified. Croker on Sheriffs, § 495; 2 Freeman on Ex., § 296; Anniston Pipe Works v. Williams, 106 Ala. 324. The evidence tends to show, that by this character of sale, the property brought much less than it would have brought, if it had been properly offered in parcels.
3. The $36 for taking and typewriting the inventory of the goods, was properly decided not to be a legitimate expense charged by the sheriff in making the sale. Kahn v. Locke, 75 Ala. 332; Smith v. Huddleston, 103 Ala. 223.
4. It is said the complainants have no right ¡to maintain this bill, since they were' strangers to’ the suits in attachment. That would be true, if they were mere intermeddlers. Buit they filed this bill, on April 6th, 1898, to set aside an alleged fraudulent mortgage on the property conveyed by Cross to Mrs. Young, afterwards [101]*101levied- on by tbe said Troup and Brock, and, as incidental to the setting aside of .the mortgage as fraudulent, and without disputing said attachment liens, if established, hut allowing them to he paid, to hold the sheriff and the plaintiffs in attachments liable for the value of the goods, above the attachment liens, on account of their alleged violations of process. The filing of the bill, gave complainants a lien, if established, on the property from the date of its filing; and while they were not parties to the attachment proceedings, they show that as creditors of the defendant in attachment, they had rights dependent upon and growing out of the sale. If the sale had been properly conducted, as they claim, — said mortgage being set aside for fraud,- — -the property levied on would have sold for enough to discharge the prior attachment liens, leaving a surplus sufficient to pay their debt, or the greater part of it, and this the evidence tends to show. Mr. Freeman says of persons occupying the attitude of complainants, “Persons not parties to the action may have rights dependent upon or growing out of the sale; and if so, they are not 'bound to remain idle and uncomplaining, while their interests are irregularly and perhaps fraudulently sacrificed. They -may have acquired liens on the same property, subordinate to the lien of the plaintiff’s writ, or have taken a transfer ¡to which such lien is paramount. In that event, they are the real parties in interest, and may institute proceedings to vacate the -sale.” 2 Freeman on Ex., § 305.
The complainants could not well 'have moved to vacate the sale until they had established their lien or title, which they could not do, until they established the invalidity of said mortgage; and having moved in equity, — as complainants were entitled to do, — to set aside said mortgage for fraud, that court became competent to consider and adjudicate all questions connected with it.
5. But, were the plaintiffs in attachment,- Troup and Brock, joint trespassers with the -sheriff, and liable, like him, for the wrongful execution of the process? On this question, Mr. Freeman says, supported as seems by reason and authority: “When the plaintiff places [102]*102his execution in the hands of an officer for service; he is presumed to intend that no action shall he taken thereunder not authorized by the terms of the writ. The sheriff may seize the property of a stranger, or do any other unauthorized act, without thereby creating any liability against the plaintiff, because the plaintiff is not presumed to have directed or ratified the illegal proceeding. .But this presumption may be rebutted. The injured party may show that the plaintiff was a co-trespasser with the officer, and may thus make both responsible for their abuse of the writ. Where the plaintiff is present at the levy, or advises or directs.it to be made, he is a co-trespasser with the officer.”2 Freeman on Ex., § 273. The same author again observes (section 303) touching the same matter, “An officer, upon any question of doubt arising, has the right to ask the plain-tiff for instructions and to demand indemnity in case the act insisted upon by the plaintiff may expose the officer to liability. When, however, the plaintiff neither indemnifies the officer, nor directs the doing of the act or acts for which the officer is subsequently subjected |to liability, the plaintiff cannot be held answerable.” Burns v. Campbell, 71 Ala. 271; Lienkauf v. Morris, 06 Ala. 406.
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HARALSON, J. —
1. As to the liability of the sheriff for selling the property under the circumstances and conditions alleged, Mr. Freeman says, as to the proper notice of sale: “So far as the courts have spoken upon the subject, they have held that the selling of property under execution by an officer without- previously giving the notice of sale required by the statute, is such misconduct that the officer is no longer entitled to the protection of liis writ. The result of this must be, that if sued in trespass, his defense cannot rest upon the process, nor can it be used in diminution of damages.’’ 2 Freeman on Ex., p. 1659, § 286.
In Wright v. Spencer, 1 Stew. 577, this court, touching this matter said: “A misfeasance is the improper performance of some act- which might have been lawfully done. The defendant- here [the sheriff] had the right to take and sell the property, but was bound to do it as directed by law. If, then, he sold without the legal advertisement, it was the improper performance of an act which might have been lawfully done, and he was, according to strict definition, guilty of misfeasance. By this he was dismantled of his protection, and made a trespasser from the beginning. There can be no question but that he was liable to the action of trespass.”—Nathan v. Shivers, 71 Ala. 121; Hartshorn v. Williams, 31 Ala. 154.
Connected with this complaint, and interwoven with it, is the averment and proof, that the goods, — other than the soda fountain, which latter article was not mentioned at all in the advertisement of sale which was made, — «’ere sold by the sheriff at a place other and different and remote from the place at which they were advertised to be sold. The result is, that, having regard to the purpose of an advertisement of sale, such as [100]*100the law requires, the goods were sold without legal notice.—Code, §§ 1905, 1906. It was the duty of the sheriff to ha.ve advertised the time and place of sale, and to have sold at the place designated in the notice. Certainly, it was a violation of duty, to advertise to sell at a designated place, and, 'afterwards, make the sale to another and remote place.—2 Freeman on Ex., §§ 290, 302; Croker on Sheriffs, § 484.
Furthermore, the soda fountain was not present, with the other goods, when they and i|t were sold, hut nearly a block away in the store where it was levied on, and not in view of the sheriff, bidders or those present at the sale. The sales of personal property under execution should always take place, at or near the place where the property is, when sold. Such sales must result in some, if not great sacrifice of the property, unless those present desiring to buy have opportunity to see and examine the property offered for sale.—2 Freeman on Ex., § 290, and authorities’ in n. 4; Murfree on Sheriffs, § 994; Croker on Sheriffs, § 493; Andrews v. Keith, 34 Ala. 728; Foster v. Mabe, 4 Ala. 402.
2. The evidence shows, that the property was sold in mass, including said soda fountain, or in what is called a “lumping sale,” which, in a case of sale of personal property under execution, can rarely be justified. Croker on Sheriffs, § 495; 2 Freeman on Ex., § 296; Anniston Pipe Works v. Williams, 106 Ala. 324. The evidence tends to show, that by this character of sale, the property brought much less than it would have brought, if it had been properly offered in parcels.
3. The $36 for taking and typewriting the inventory of the goods, was properly decided not to be a legitimate expense charged by the sheriff in making the sale. Kahn v. Locke, 75 Ala. 332; Smith v. Huddleston, 103 Ala. 223.
4. It is said the complainants have no right ¡to maintain this bill, since they were' strangers to’ the suits in attachment. That would be true, if they were mere intermeddlers. Buit they filed this bill, on April 6th, 1898, to set aside an alleged fraudulent mortgage on the property conveyed by Cross to Mrs. Young, afterwards [101]*101levied- on by tbe said Troup and Brock, and, as incidental to the setting aside of .the mortgage as fraudulent, and without disputing said attachment liens, if established, hut allowing them to he paid, to hold the sheriff and the plaintiffs in attachments liable for the value of the goods, above the attachment liens, on account of their alleged violations of process. The filing of the bill, gave complainants a lien, if established, on the property from the date of its filing; and while they were not parties to the attachment proceedings, they show that as creditors of the defendant in attachment, they had rights dependent upon and growing out of the sale. If the sale had been properly conducted, as they claim, — said mortgage being set aside for fraud,- — -the property levied on would have sold for enough to discharge the prior attachment liens, leaving a surplus sufficient to pay their debt, or the greater part of it, and this the evidence tends to show. Mr. Freeman says of persons occupying the attitude of complainants, “Persons not parties to the action may have rights dependent upon or growing out of the sale; and if so, they are not 'bound to remain idle and uncomplaining, while their interests are irregularly and perhaps fraudulently sacrificed. They -may have acquired liens on the same property, subordinate to the lien of the plaintiff’s writ, or have taken a transfer ¡to which such lien is paramount. In that event, they are the real parties in interest, and may institute proceedings to vacate the -sale.” 2 Freeman on Ex., § 305.
The complainants could not well 'have moved to vacate the sale until they had established their lien or title, which they could not do, until they established the invalidity of said mortgage; and having moved in equity, — as complainants were entitled to do, — to set aside said mortgage for fraud, that court became competent to consider and adjudicate all questions connected with it.
5. But, were the plaintiffs in attachment,- Troup and Brock, joint trespassers with the -sheriff, and liable, like him, for the wrongful execution of the process? On this question, Mr. Freeman says, supported as seems by reason and authority: “When the plaintiff places [102]*102his execution in the hands of an officer for service; he is presumed to intend that no action shall he taken thereunder not authorized by the terms of the writ. The sheriff may seize the property of a stranger, or do any other unauthorized act, without thereby creating any liability against the plaintiff, because the plaintiff is not presumed to have directed or ratified the illegal proceeding. .But this presumption may be rebutted. The injured party may show that the plaintiff was a co-trespasser with the officer, and may thus make both responsible for their abuse of the writ. Where the plaintiff is present at the levy, or advises or directs.it to be made, he is a co-trespasser with the officer.”2 Freeman on Ex., § 273. The same author again observes (section 303) touching the same matter, “An officer, upon any question of doubt arising, has the right to ask the plain-tiff for instructions and to demand indemnity in case the act insisted upon by the plaintiff may expose the officer to liability. When, however, the plaintiff neither indemnifies the officer, nor directs the doing of the act or acts for which the officer is subsequently subjected |to liability, the plaintiff cannot be held answerable.” Burns v. Campbell, 71 Ala. 271; Lienkauf v. Morris, 06 Ala. 406.
The evidence is wanting to show that the defendant, ' Troup, ever did anything more than sue out his attachment and place the writ in the hands of the sheriff. It is not shown he ever gave the sheriff any directions or instructions about the levy or sale, or that he was present at the sale. The same thing is practically true of the defendant, Brock. The only thing he is shown to have clone was, — as deposed by the deputy sheriff, Turley,—that after the levy,—to state it in his own language, “he [Brock] afterwards told me to take the goods out of the house they' were in, as he wanted his house; lie wanted it, I think, by (the 15th [of April].” We do not find this request of Brock, made of the sheriff, to be such as to hold him liable for the alleged abuse of process by the sheriff. It was no interference by him with the process, and, at most, was a request which the sheriff was not bound to obey; and that officer might [103]*103liave obeyed it, without being guilty of any of the alleged irregularities in the sale. There was no necessary causal •connection between this request, and the injury the sheriff is shown to have done the complainants growing out of the manner in which he sold the goods. The attachments were sued out, as lias appeared, the 28th March, 1898, and this hill was after-wards filed, on April G, 1898.
The chancellor in his opinion, says, “Said Troup and Brock lulling been instrumental in having the goods •attached by the sheriff, are liable, together with the sheriff for any misfeasance or neglect causing a material depreciation in the value of the goods.” He decreed accordingly. In this, we apprehend the learned chancellor fell into error. The suing out of the attachments to recover their rents by said’parties was a legitimate proceeding, done more than a month before this bill was filed, and in no way interfered with any legal or equitable right of the complainants.
The decree beloiv in so far as it holds Troup and Brock liable to the complainants for the value of the goods sold by the sheriff, is reversed, and in so far as it holds Ryan, the sheriff, liable, is affirmed.
Reversed in part, affirmed in part, and remanded.