#### MRS. GEORGE M. CORE v. W. T. McCOY AND COMPANY, F. A. CULP and S. L. CULP, Trading as CULP BROTHERS, and ED MELLON COMPANY.

(Filed 25 January, 1933.)

Attachment J b — Attaching creditor held not liable to third person for wrongful attachment undex* facts of this case.

Where a writ of attachment is issued against the property of a nonresident stored in a warehouse, and certain furniture of the nonresident’s mother, also stored in the warehouse in his name, is seized and sold by the officers, the mother may not recover the value of the furniture in an action against the attaching creditor where there is no evidence that the creditor was present or participated in the sale, or that he had knowledge of the mother’s claim or received the proceeds of the sale with knowledge of the wrongful act of the officers.

Appeal by defendants W. T. McCoy and Company and Culp Brothers from *Schenck, J.,*at February Term, 1932, of MecKleNbubg.

Reversed.

Tbe plaintiff alleged that slie was tbe owner of certain personal property; that prior to July, 1930, sbe bad lived in Charlotte with her married son Y. R. Core; that her property bad been in bis borne; that sbe and her son bad left tbe city; that in storing bis personal property in a warehouse her son bad stored hers also in bis name; that tbe defendants bad levied an attachment against bis property and bad sold hers; that the defendants bad converted her property and that sbe was entitled to recover its market value.

Tbe defendants filed ansivers and as to tbe two appealing defendants tbe jury returned tbe following verdict:

1. Was tbe plaintiff, Mrs. George M. Core, on 29 July, 1930, tbe owner of tbe furniture described in tbe complaint? Answer : Yes.

2. Did tbe defendant, W. T. McCoy and Company, convert, or cause to be converted to its own use any part of said furniture? Answer: Yes.

3. If so, what was the value of tbe property so converted by the said defendant, W. T. McCoy and Company at tbe time of such conversion? Answer: $449.69.

*1194. Was tbe negligence of Mrs. George M. Core tbe proximate cause of tbe conversion of ber said furniture by tbe said defendant, W. T. McCoy and Company, as alleged in tbe answer? Answer: No. 2

1. Was tbe plaintiff, Mrs. George M. Core, on 29 July, 1930, tbe owner of tbe furniture described in tbe complaint? Answer: Yes.

2. Did tbe defendants, F. A. and T. L. Culp, trading as Culp Brothers, convert or cause to be converted to tbeir own use any part of said furniture? Answer: Yes.

3. If so, wbat was tbe value of tbe property as converted by said defendants, F. A. and S. L. Culp, trading as Culp Brothers, at tbe time of such conversion? Answer: $113.84.

4. Was tbe negligence of Mrs. George M. Core tbe proximate cause of tbe conversion of ber said furniture by tbe said defendants, F. A. and T. L. Culp, trading as Culp Brothers, as alleged in tbe answer : Answer: No.

Judgment against all tbe defendants, from which McCoy and Company and Culp Brothers appealed upon assigned error.

*Bridges & Orr for appellants.*

*J. Louis Garter and, Thaddeus A. Adams for appellee.*

Pee Cubiam.

Tbe plaintiff, living temporarily with ber son, Y. R.

Core, went on a visit to ber brother in West Virginia on 1 February, 1930. She left ber furniture in ber son’s bouse in Charlotte. On 3 May, 1930, be left Charlotte and went to Chicago. He bad become indebted to McCoy and Company in tbe sum of $129.15, to Culp Brothers in tbe sum of $32.70, and to Ed Mellon Company in tbe sum of $87.50. Before going to Chicago be stored bis furniture and tbe plaintiff’s in a warehouse and signed a storage contract in bis own name. Tbe defendants caused warrants of attachment to be issued against the property of Y. R. Core, but not against tbe property of tbe plaintiff.

Tbe appellants moved for judgment of nonsuit. They say that tbe plaintiff’s allegations are not sustained by tbe evidence; that tbe appellants did not cause tbe officers to levy tbe attachment on tbe plaintiff’s property; and that an attaching creditor who does not direct or assist tbe officer or otherwise aid him in committing a trespass is not liable in damages to a stranger or third party whose property is wrongfully sold.

In our opinion tbe motion for nonsuit should have been granted. The officer who sold tbe property is not a party to tbe action and tbe question of bis liability is not before us. *Tatham v. DeHart,*183 N. C., 657; *Gay v. Mitchell,*146 N. C., 509. In declining tbe defendants’ mo*120tion bis Honor probably bad in mind tbe case of *Flowers v. Spears,*190 N. C., 747; but it will be seen by reference to tbe record in that case that tbe sheriff bad been notified a short time after tbe warrant of attachment bad been issued that tbe attached property was owned by tbe plaintiff, and that tbe court instructed tbe jury in reference to a sale by all tbe defendants, not by tbe sheriff alone. In tbe present case we find no evidence that tbe officer or tbe defendants bad any notice, actual or constructive, of tbe plaintiff’s claim, or that tbe defendants received any part of tbe proceeds of tbe sale with knowledge that any person other than tbe defendant bad or claimed an interest in tbe property attached or that defendants with knowledge of tbe wrong ratified tbe officer’s act.

Tbe controlling principle has been stated as follows: “While an attaching creditor may be held liable, jointly with tbe levying officer and independently of any bond, for a wrongful seizure, under tbe attachment, of property of a person other than defendant in attachment, such liability is confined to cases in which be counseled, directed, or consented to tbe illegal act of tbe levying officer, or, knowing that tbe acts of tbe officer were wrongful or irregular, adopted, ratified, or confirmed them; and for a wrongful seizure with which tbe attaching creditor was not so connected be cannot be held liable, but tbe injured person must seek bis redress solely against tbe levying officer and tbe sureties on bis bond.” 6 C. J., 416, sec. 966.

It is not contended that tbe evidence makes a ease of malicious prosecution or abuse of process. *Wright v. Harris,*160 N. C., 543; *Mahoney v. Tyler,*136 N. C., 40. Judgment

Reversed.