¶1We think the first instruction was right. Plaintiff insists that the sale would not be void, unless he participated in, or had knowledge, at the time of his purchase, of Stewart’s fraudulent intentions; and that the instructions should have been so qualified. It would certainly have more fully stated the law, if thus qualified; but when fairly construed, it cannot be said to establish the doctrine, that the fraudulent intention of the vendor alone, would make the sale void. It does not say, that if Stewart had a fraudulent intention, but if the sale was made to defraud the creditors of Stewart, it would be void. (living the word sale its proper legal signification, and bearing in mind that there must be a vendee as well as a vendor in such sales, we cannot think that the jury could reasonably have been misled by this instruction. To have prevented any possible, or even probable, misapprehension by the jury, the plaintiff might well have asked for the qualification now suggested. Having failed to do so, we do not think he can now complain.
¶2If the second instruction means that the sale would be void as between Miller and Stewart, unless there was a bill of sale, executed, acknowledged, and Recorded, like deeds of real estate, it is clearly erroneous. We suppose, however, that the instruction relates to the rights of the existing creditors of the said Stewart, or subsequent purchasers from him. As to them, the sale would be void where the vendor *60retained tbe actual possession of tbe property, unless they had notice of such sale, or unless there was a written instrument conveying the same, executed, acknowledged, and filed, like conveyances of real estate. Code, § 1193. With the qualification, that' the sale would not be valid against such creditors, or purchasers without notice, we think the instruction substantially correct.
¶3The last instruction, we think, is wrong. We are unable to see any probable state of case, in which it would be true. If this instruction is correct, then, indeed, the plaintiff’s own petition fails substantially to sjiow a right to maintain this action, for it states, as required by the Code, § 1995, that the sheriff holds the property by virtue of certain writs of attachment, in his hands as such officer. In these cases, the sheriff is a, necessary, and yet really the nominal, party de fendant. Those really interested are the attaching or execution plaintiffs, and to say that if a sheriff levies upon and holds property by virtue of his office, no other person can maintain replevin against him, would be to virtually subject the property of A. to the payment of the debt of B. If this property had been taken by virtue of any legal process against Miller, and was not exempt from seizure thereon, this instruction might be correct. But a process against Stewart, would not be a justification to the sheriff in attaching the property of Miller,; and whether he did so attach the property of Miller, as already stated, was the controverted question. . •
¶4Judgment reversed.