¶1 The plaintiffs claim title to the buggy under an unregistered mortgage from the defendant Nealy, and the interpleaders, Worth and others, claim title under *341 attachments against the defendant Nealy. The plaintiffs, under claim and delivery proceedings, had caused the buggy to be taken by the sheriff, and while the sheriff had the property in his possession under these proceedings, the defendant interpleaders placed in his hands the attachment papers on their claim, and the sheriff levied the same (if he had the right to do so) on the buggy, while it was still in his possession under the claim and delivery proceedings. That after this levy, and while the property was still so in the hands of the sheriff, the mortgage under which the plaintiffs claim was registered.
¶2 It is admitted that an unregistered mortgage is good against the mortgagor, and it is also admitted that it is not good as against creditors.
¶3 It was contended by the defendant interpleaders that their attachments were executed by the sheriff before the mortgage was registered, and this entitles them to the buggy, while the plaintiffs contend that the buggy was in custodia legis at the time the attachments were put in the hands of the sheriff, and remained so until after the mortgage was registered. That for this reason the sheriff could not execute the attachments, while the buggy was so in his custody, and the levy after the registration of the mortgage did not or would not affect their title. The plaintiffs’ counsel cited in support of their position (that the buggy, being in custodia legis, could not be levied on) Alston v. Clay, 2 Haywood, 171 ; Overton v. Hill, 1 Murphy, 47, and Hunt v. Stevens, 3 Ired., 365. But this doctrine of cxistodia legis preventing a levy is overruled in State v. Lea, 8 Ired., 94, and Gaither v. Ballew, 4 Jones, 488. And it is a little singular that the Court, (PeaesoN, J., delivering the opinion,) in the case of Gaither v. Ballew, cites and comments on Alston v. Clay and Overton v. Hill, without making any mention of Hunt v. *342 Stevens, or Jeffreys v. Lea, supra, when Jeffreys v. Lea enunciated the same doctrine as is enunciated in Gaither v. Ballew.
¶4 The doctrine enunciated in Jeffreys v. Lea and Gaither v. Ballew is not put upon the ground of being in custodia legis, but upon the ground that the service of the attachment would interfere with the execution of the process of the court in the hands of the sheriff, Tinder which he seized the property. But that for money in the hands of a clerk, where no further order of the court is necessary to be made, and the party to whom it belongs has a right to demand it, an attachment will lie. And the same with a sheriff-; where he has money in his hands, collected under process, but which the owner may demand, and the sheriff would have a right to pay over to him, it is the subject of an attachment against the owner.
¶5 And it is only where the service of such attachment would conflict with the discharge of his duties as sheriff in obeying the order or mandate of a court under which he took possession of the property or effects in his hands that' an attachment cannot be served.
¶6 In claim and delivery the mandate is to take the property and deliver it to the plaintiff. Code, Section 323. So it would seem that while the buggy was in the possession of the sheriff, under this mandate of the court, the law will not allow him to serve any other process that would conflict with his duty in delivering the property he had taken, under the claim and delivery proceeding, to the plaintiff, .or that would injuriously affect the plaintiffs’ right to the property while it was in his possession under said process.
¶7 It seems that the law will not allow the execution of *343 its precepts and process to be interfered with until their execution has been completed.
¶8 Under the facts found by the court, we find no error of law, and the judgment is affirmed.
¶9 Affirmed.