majority">Bailey, P. J.

This' was an action of debt on a replevin bond. It appears that, on the 6th day of April, 1883, Seth F. Hanchett, sheriff of Cook county, having in his hands two executions against the property of Charles S. Munson, one in favor of John L. Barn run and Ralph Arthur, for $1,048.65 and costs, issued February 10,1883, from the Superior Court of Cook county, and one in favor of Robert E. Jenkins,'assignee of the estate of Josiah R. Butler, for $733.14 and costs, issued March 1,1883, from the Circuit Court of Cook county, levied said executions upon certain goods and chattels, consisting of the furniture and fixtures in the Massasoit House, Chicago. On the following day Eliphalet W. Blatchford and Caleb F. Gates brought their replevin suit and caused said goods and chattels to be replevied from the sheriff. Hanchett, the sheriff, Burke, his deputy, and the plaintiffs in the executions were made parties defendant to the replevin suit.

In the affidavit in replevin, Jenkins was described as assignee of the estate of Josiah B. Butler, but in the writ and bond he was by mistake described as assignee of the estate of Joseph B. Barker. Subsequently, on motion of the plaintiffs in the replevin suit, leave was given to amend the files by changing the name of Joseph B. Barker to Josiah B. Butler, and at the same time and as a part of the same order, the court, on motion of said plaintiffs, ordered that the suit be dismissed at their costs, and that the defendants recover of the plaintiffs the possession of the property replevied, and have a writ of retorno hahendo therefor. It does not appear that said amendment was actually made in any of the papers in said suit. The property replevied not having been returned, the present suit was brought. In this suit Jenkins is named as one of the parties for whose use the suit is prosecuted, by his proper description, it being averred in the declaration that he was incorrectly described in the bond as assignee of the estate of Joseph B. Barker.

Objection was made at the trial to the admission of the bond in evidence on account of this error of description as to Jenkins’ trust capacity. The bond was correctly described in the decoration, and proper averments were made in relation to said error of description in the bond, and we see no reason why it was not properly admissible under -the defendants’ plea of non est factum.

But it is urged that by bringing suit for the use of Jenkins as assignee of Butler, the plaintiffs are seeking to impose upon the obligors a different liability from that imposed by the condition of the bond. In this view we are unable to concur. Jenkins, though named as one of the usees, is in no sense a party to the suit, nor do we think his presence as a usee in any form at all essential to the protection of his equitable rights to a portion of the damages recoverable on the bond. Though made a party to the replevin suit, neither he nor the plaintiffs in the other execution were necessary or even proper parties to that suit. They had no property, either general or special, in the goods and chattels levied upon, and no jiossession of them or right of possession. The legal custody and possession of said goods and chattels was in the officer only.

In Richardson v. Reed, 4 Gray, 441, it is held that a creditor at whose suit an attachment is levied upon goods not the property of his debtor, is not liable in replevin for the goods attached, either alone or jointly with the attaching officer. The principles upon which this decision is based, and which seem to us to be entirely sound and satisfactory, are stated by the court as follows: “ The grounds and incidents of a replevin suit are incompatible with the joinder of the creditor and officer as defendants. The writ of replevin assumes that the goods which are to be replevied have been taken, detained or attached by the defendant, and are in his possession or-under his control; and it directs that they shall be replevied and delivered to the plaintiff, provided he shall give bond conditioned, among other thing;, to restore and return the same goods to the defendants, and pay him damages, if such shall be the final judgment in the action. But attached goods are in the legal custody and possession of the officer only. The attaching creditor has no property in them, general or special, no right to the possession of them, and no right of action against a third person who may take them from the officer or destroy them. How then can the goods be returned on a writ of return or reprisal to him who never had possession of them, or right to possession ? Or how can he be entitled to damages for the taking and detaining of goods in which he had no property ? ” See also Grace v. Mitchell, 31 Wis. 533 ; Mitchell v. Roberts, 50 N. H. 486; Wells on Replevin, Sec. 143.

In this case the sheriff was the proper party defendant to the replevin suit, and the return of the property having been awarded, he was the proper party to recover, in the name of the coroner, for his own use as sheriff, the amount of the liens represented by both the executions in his hands. This right on the part of the sheriff was in no degree affected by the act of the plaintiffs in the replevin bond in improperly joining the execution creditors as co-defendants with him, or in naming them as such defendants in the condition of the bond. The right to enforce the entire liability upon the bond was in the sheriff, and no additional liability was imposed upon the obligors by naming Jenkins in any form as a usee.

The principal controversy in the case arises upon the defense made by the pleas in mitigation of damages filed by the defendants pursuant to the provisions of section 26 of the statute in relation to replevin. In those pleas it is alleged that the merits of the case had not been determined in the trial of the replevin suit, and that at the time of the com, mencement of the replevin suit, the goods and chattels replevied were the property of Eliphalet W. Blatchford and Caleb F. Bates, the plaintiffs in said suit.

To maintain their title Blatchford and Gates offered in evidence a chattel mortgage of said property, dated April 4,1881j executed by Charles S. Munson to them under their firm name of E. W. Blatchford & Co., to secure the payment of three promissory notes payable to E. W. Blatchford & Co., one for §4,800, due on or before six months from said date, and one for §5,800, due on or before twelve months from said date, both signed by Charles S. Munson and Maggie Munson, and one for §13,000, due on or before two years from said date, signed by Charles S. Munson. The mortgage contained a provision authorizing the mortgagees, in case of default, to také possession of the mortgaged property and sell the same at public auction after giving certain notice, or at private sale with or without notice, for cash or on credit.

It appears that a short time prior to the expiration of two years from the date of the mortgage, said notes being unpaid, E. W. Blatchford & Co., and Munson, in anticipation of the termination of the lien of the mortgage, entered into an agreement or arrangement by which they agreed, at the expiration of said two years, to take possession of the mortgaged property and foreclose the mortgage by making a private sale of the property back to M.rason on credit, and take a new mortgage from him to secure the purchase money. In pursuance of this arrangement, Blatchford and Gates, on the 5th day of April, 1883, in the morning or early part of the day, went to the Massasoit House, where said property then was, and took formal possession of the property, without moving it or in any way disturbing it as it was then distributed about the house. There was then another and prior mortgage for $5,000 on the property, in favor of another party, maturing the same day, which Biatchford and Gates paid off and satisfied, and Munson seems to have been indebted to them to a considerable amount for money advanced by them to him subsequent-to the date of their mortgage. Having taken possession of the property in manner above stated, Biatchford and Gates immediately executed a bill of sale of the same to Munson for a consideration therein expressed of $30,000, and reciting therein that the sale was made by them-as mortgagees, by virtue of the terms and provisions of the chattel mortgage from Munson to them. No portion of the purchase money was paid by Munson, but. immediately upon the execution to him of the bill of sale and as a part of the same transaction, he executed, acknowledged and delivered to Biatchford and Gates a chattel mortgage on said property to secure three notes to them, all dated April 4, 1883, one for $1,000, clue six months after date, one for $19,-400, due on or before seven months after date, both signed by Charles S. Munson and Maggie Munson, and one for $13,000, due on or before one year after date, signed by Charles S. Munson, said notes together aggregating $33,400. Said mortgage, as soon as it was executed, was placed on record, the date of its record being at 11 o’clock a. m., of the day of its execution. Shortly after the mortgage was recorded, viz., at about noon of the same day, Biatchford and Gates surrendered the possession of the property back to Munson. On the day following, the sheriff levied on said property by virtue of the executions then in his hands, and the next day they were replevied from him by the coroner.

The evidence tends to show that, at the time of the execution of the mortgage of April 4, 1881, there was an understanding between Munson and the mortgagees, that at its maturity, the mortgage, if not paid, should be renewed for another term, and that shortlybefore its maturity, Munson had several interviews with said mortgagees in relation to the matter, in which it was agreed that they should take such steps as would protect the property against other claims and liens, and that for that purpose the expedient of a foreclosure by taking possession and selling the property under the power in the mortgage to Munson, and taking back from him a mortgage for the purchase money, was adopted.

Such being the evidence, the jury found the issues for the plaintiff and assessed Ms debt at the penalty of the bond, and his damages at §2,543.50, the amount due on the executions in the sheriff’s hands.

We think the evidence warranted the verdict. Even if it should he admitted that the mode of foreclosure adopted, if i* had been undertaken and carried out in entire good faith, would have vested Blatehford and Gates with a lien superior to those of the creditors whose executions were then in the hands of the sheriff, the jury were warranted in finding that the entire scheme was undertaken by Blatehford and Gates for the purpose of so dealing with the property as to keep it in the possession and enjoyment of Munson, and to protect it from the liens and claims of other creditors. Such disposition of the property, made with that intent, however regular in form, was clearly in fraud of the rights of other creditors and void as to them.

We find no material errors in the instructions. In several of them the rule was laid down that, before Blatehford and Gates’ lien could he held superior to that of the execution creditors, it must appear that their mortgage was recorded prior to the delivery of the propeity by them to Munson, and it is claimed that such ruling was erroneous. Whether erroneous or not, it couldnofchave prejudiced the defendants, since the evidence shows without contradiction, that after the chattel mortgage was drawn up, Munson took it and went before a justice of the peace and acknowledged it, and then carried it to the recorder’s office and filed it for record. He then returned to the Massasoit House, where Blatehford and Gates or their representatives had remained in possession of the property, and received a delivery of it from them. There being no conflict in the evidence on that point, the instructions requiring the jury to find snch fact before finding for the defendants could have wrought no prejudice to them.

We find no material error in the record, and the judgment will therefore he affirmed.

Judgment affirmed.

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