On the 20th  day of May, 1908, the plaintiffs commenced the present action, in the  Court of  First  Instance  of the Province  of Laguna,  against the defendants, for the purpose  of having declared null  and void  the sale of  four parcels of land described in paragraph 2 of the complaint, which  sale  was  made  under  a  certain execution  by  the sheriff of  the Province of Laguna,  and  to have the plaintiffs declared to he the  owners of said parcels of  land, and to recover damages and costs.

The defendant, Pedro Cortez, in his answer alleged that he was the owner of the said  parcels of land, by virtue of having purchased the same at a public sale by the said sheriff; that Salvador Rosales  and Andrea Virey were the owners of said parcels of land  up to and including the time when  the  same were sold  under execution by the sheriff of the Province of Laguna.

The defendant, Mariano Manalo, answered the said complaint by alleging, in substance, that he  had sold the lands in question  by  virtue of an execution issued by the Court of First Instance of the Province of Laguna; that  four days preceding  the sale of said lands and  after the execution had been levied, the plaintiff, Romualdo Osorio, notified him in writing that the lands in question belonged to him and requested that  the same be not sold that  the  attachment be raised; that, notwithstanding this written notice by the plaintiff that the lands  in  question belonged  to  him,  the defendant, Pedro Cortez,  insisted  upon the sale of said lands, and executed and delivered  to the defendant, Mariano Manalo,  a  bond in the sum  of P500, to  secure him (Mariano Manalo, as sheriff)  against any loss which might result by virtue of the sale  of said lands under said execution.

After hearing  the  evidence adduced during the .trial of the cause, the  Honorable Vicente Jocson, judge,  rendered a decision in favor of the plaintiffs and against the defendants,  the dispositive part of which is as follows :

  "The court therefore  declares null and void  the attachment levied by the provincial sheriff, Mariano  Manalo,  on the lands in question, and  likewise null and void  the sale at public auction of the same lands to  Pedro Cortes, and consequently declares said lands to be the  exclusive property of Romualdo Osorio and his wife.  The defendants are ordered to restore said lands to the plaintiffs and  are further sentenced  jointly and severally to pay to the  plaintiffs the sum of P40 a year,  counting from February 28, 1905, when  the lands were attached  and taken away from  the plaintiffs, until the restoration of said property is  effected. The defendant  Pedro Cortes is further sentenced to pay the costs of this case."

From that decision the defendants appealed to this court and made the following  assignments of  error :

"I. The court erred in  holding that the appellees were the owners of the lands in question at the time when they were attached by the sheriff and sold at public auction to the appellant, Pedro  Cortes,

"II. The court erred  in declaring null and void the sale and transfer made by the sheriff to the appellant, Pedro Cortes; as it also erred in ordering the appellants to restore the ownership and possession of the lands in question to the plaintiffs.

"III. The court erred in sentencing the defendants and appellants jointly and severally to pay to the plaintiffs, for products received, the  sum of  f*40 a year, counting from February 28, 1905."

With reference to the first assignment of error, the lower court, in discussing the question raised by said assignment, said:

"The  question  raised by the defendants depends solely upon whether the lands now in question were actually sold on August 7, 1903,  for there  is no question as  to  their identity.  Nor has  any doubt  been raised regarding the ownership of Salvador  Rosales and Andrea Virey before said sale, since the defendants  admit that the land in question belongs to the  Rosales couple and maintain further that it continued  to belong  to this  couple until  it  was attached, and they have by implication maintained  by their reply that the sale made by the plaintiffs was a pretended one.

"The  preponderance  of the  evidence at the trial  has clearly demonstrated that Romualdo Osorio  and his  wife really  bought the lands in question on  the date stated in Exhibit B of the  plaintiffs and that the signatures affixed by the deceased Salvador Rosales and his wife Andrea Virey to this exhibit, as well  as  to Exhibit 4  of  the defendants, are genuine signatures  of the  vendors,  whose signatures were not only recognized by Andrea Virey and other wit- nesses of the plaintiff, but this  fact was also corroborated by the testimony of Catalino Sevilla, an attorney and witness on  handwriting, called by the defendants, that  the signatures which  appear in the ratification of Exhibit B of the  plaintiffs  before the notary Sulpicio  Trivino are the signatures of the  deceased  Salvador ttosales  and Andrea Virey, after he had  compared these signatures with other undisputed  ones submitted by the defendant for his comparison.

"However, weighing all the evidence together, I find that the signatures of the couple Salvador Rosales and Andrea Virey, affixed to Exhibit B of the plaintiffs, and those affixed to  the ratification, Exhibit U of the defendants, were written by  the same persons who figure therein and that therefore  the sale made by the Rosales couple to the herein plaintiffs was perfectly legal and made on the date expressed in the document"

Upon an examination of the evidence brought to this court, we  find that on the 7th day of August, 1903, Salvador Rosales and his wife, Andrea Virey, sold the four parcels of land under  a pacto de retro, for the sum of P500, to the plaintiff,  Romualdo  Osorio.  (See  Exhibit B, Record, p. 16.)  That  on the 2d day of December,  1905, the said Salvador Rosales and Andrea Virey ratified said Exhibit B, confirming the sale  of said land,  before a notary public. (See Exhibit 4, Record, p. 17.)

It further appears from the record that some time before the 17th of June,  1905 (the exact date not appearing of record), the defendant, Pedro Cortez, had secured a judgment  in the Court of First Instance of the  Province of Laguna against the said Salvador Rosales for a certain sum of money, and  that upon the 17th of June, 1905,  by virtue of  an  execution issued upon said judgment,  the defendant, Mariano Manalo, as deputy sheriff of the Province of Laguna, attached the parcels of land in question and advertised the same for sale on the 20th of July, 1905; that upon the 16th of July, 1905, four days before the sale of said lands took place, the plaintiff, Romualdo Osorio, gave the  defendant,  Mariano Manalo, written notice that the said parcels of land belonged to him  and requested that said attachment  be  raised;  that,  notwithstanding  said written request, given in accordance with the provisions of section 451 of Act No. 190, the defendant Pedro Cortez, insisted upon the sale of said lands, and on the 20th  of July, 1905, executed and delivered to the sheriff, Mariano Manalo, a bond in the sum of P500, to secure him (Mariano Manalo) against any  loss resulting from the sale of said lands.

The principal ground upon which the appellants rely  in their contention that the four parcels of land in question had not been sold to the plaintiff on the 7th of August, 1903, is that the said contract  (Exhibit B) was a private document and was not sufficient, under the provisions of article 1280  of the  Civil Code, to transfer the ownership  of the said  lands to the plaintiff.  Paragraph 1  of said  article 1280  provides that:

"Acts and contracts the object of which is the creation, transmission, modification or extinction of real  rights on real property, must be executed by a  public instrument." This  court has held that the contracts, required by said article 1280  to be in  writing, are nevertheless  valid and produce legal effects between the parties, although they are not evidenced by a public document.   (Thunga Chui vs. Que Bentec, 2 Phil. Rep., 561; Couto Soriano vs. Cortes, 8 Phil. Rep., 459;  Conlu vs. Araneta, 15  Phil. Rep.,  387.)

Our conclusions are, therefore, with reference to the first assignment of error above noted,  that the four parcels of land in question were sold, under a pacto de retro, by Salvador Rosales  and his wife  Andrea  Virey to  Romualdo Osorio on  the 7th of August, 1903 (Exhibit B); that on the 2d of December, 1905, said sate was ratified and  confirmed by the same vendors (Exhibit 4); that at the time of the execution and sale of said parcels of land by the defendant (the sheriff), they belonged, not to Salvador Rosales and his wife, but to Romualdo Osorio, and that the defendant herein  had due notice in writing  (sec;  451  of Act No. 190)  of  that fact.  The land sold  under the execution at the time of the sale was not the  land of Salvador Rosales and his wife, but the  property of Romualdo  Osorio. The only argument  presented by  the defendants  and appellants in support of their second assignment of error above noted is the argument presented in support of the first assignment of error.  .With reference to  this second assignment of error, the lower court, in discussing the effect of the sale of the lands in question by the sheriff, said:

"Since, then, the herein plaintiffs are the absolute owners of the  coconut lands attached, by virtue of the purchase they made from the Rosales couple, the attachment and sale at public auction by the provincial sheriff, Mariano Manalo, on petition of the plaintiff, Pedro Cortes, in the year 1905, are necessarily null and  void and without  legal  effect; they are therefore liable for the losses suffered by  the plaintiffs. According to evidence adduced by the  defendant, Pedro Cortes, which appears in the testimony of Romualdo Vite, the  coconut groves in question produce four thousand coconuts a year, worth from twelve to fifteen pesos a thousand, and the expenses amount  to P3  a thousand.  Reckoning only P13 as the value per thousand, we find that the lands in question produce P40 a year, net."

 There would seem to be little necessity for saying more than has been said with  reference to the conclusions of the lower court in relation to this second  assignment of error, except for  the fact that it has been suggested  that a sheriff is not liable for the sale of property under an execution, when he acts in good faith; that his writ of execution is a sufficient warrant for him to protect him against loss; that the  writ of execution is an order to sell  the property and that he should not be held liable for the performance of his duty.   The writ of execution, however, directed to  the sheriff,  always commands him to attach and /sell the property  of  the judgment  debtor.  If he attaches and sells property belonging to a third person he is not obeying  the orders contained in the writ of execution.  It  is difficult to see or understand upon what theory the sheriff can claim good faith when, under an  execution  against  the property of A, he attaches arid sells, with due  notice, the property of B.  The lower court found, from the evidence, that the writ of execution was directed against  the property of Salvador Rosales and his wife, Andrea Virey, and the proof shows conclusively that the sheriff levied upon  and sold property belonging to Romualdo Osorio.  The proof shows also that the sheriff had written notice, before  the sale of the property took place, that the same did not belong to Salvador Rosales  and his  wife, but was  the property of Romualdo  Osorio.  The writ of execution can, under  no theory, furnish protection against the liability of the sheriff when he does not comply  with its orders.  If  the sheriff attaches and sells the property  of a person other than the judgment debtor, his responsibility is the  same as that of any other  person  who takes possession wrongfully  of the property of another.

The case of Waite  vs. Peterson (8 Phil. Rep., 449) was an  action to recover  the value  of the  property alleged to have  been  illegally attached and  sold  by  the sheriff.   In discussing  the liability of the sheriff, this court said:

"If property  of a  person is  taken  by the sheriff upon an  execution against another person, the  sheriff is  liable therefor in the  absence of statute, as  any private person would be.   When one's property  is  wrongfully taken  by another, the former has a right of action against the person who interfered with  his property, either for the  recovery of the property itself, or for damages for  its taking, and he has his  choice of these remedies."

The case of Quesada vs. Artacho  (9 Phil. Rep.,  104) was also an action against the  sheriff to recover  damages for an illegal sale of property under an execution.   In that case this court, speaking through its Chief Justice, Arellano, said, with  reference to the liability of  the sheriff: "The defendant (the sheriff)  is not excusable under the theory that the official acts of  the sheriff  are  of a  mere ministerial nature for which he  can not be held responsible so long as he adheres strictly  to the terms of the order of the court or to the  requests and indications of the party seeking the attachment and upon whom the sheriff believes he can thrust all responsibility as the real party concerned in the matter, for the reason that the supposition  upon which such theory is based, in view of the present method of procedure, and the general principles of law, is a false one.  Under the present procedure a judicial officer,  when serving such process, has the same responsibility, with some exceptions, as any private individual who interferes with property or possession claimed by  a third party  who has neither been heard nor defeated in action, and who can in no  manner whatever be dispossessed of what  belongs  to him, while he is in quiet and peaceful possession thereof."

The case of Uy Piaoco vs.  Osmeña (9 Phil. Rep., 299) was also an action against the sheriff for an alleged illegal sale of property under an execution.  In the decision  in that cause, this court, speaking through Mr. Justice Torres, said:

"A  third party who protests against the seizure of his property and files his claim in accordance with the law, is entitled to  protection and to be  restored  to  possession thereof.

"Where in spite of a claim made in accordance  with the law the sheriff  maintains the attachment and  refuses  to dissolve the same, he  incurs the responsibility  prescribed by law, because he thereby commits an act of dispossession, or an actual attempt against the right of ownership."

An execution is an order to the sheriff to attach and sell the property of the judgment debtor.  If he  sells the property of another person he is not obeying the  order of the court.  The  sheriff  has  no  authority to attach  the property of any person except the property of  the person named in the execution.   If he does so the writ of attachment  affords him no justification of the act; it is not in obedience to the mandate of the writ.  (Rhodes  vs. Patterson, 3 Cal., 469; Van  Pelt vs. Littler, 14 Cal.,  194;  State vs. Moore, 19 Mo., 369; Harris vs. Hansen, 11 Maine, 241; People vs.  Schuyler, 4  N. Y., 173;  State  vs. Telon, 69 N.  C, 35.)

A sheriff who sells property not belonging to the defendant named in the writ of attachment under which he acts, is liable to the true owner for whatever damages may result, although the sale was made without taking actual possession of the property.   Neither can the sheriff escape liability because he sold only  the right, title and interest of the judgment debtor.  (Curtner  vs.  Lynden,  128 Cal.,  35; Rankin vs. Ekel, 64 Cal,, 446; Terrail vs. Tinney, 20 La. Ann., 444; Shumway vs.  Rutter, 8 Pickering (Mass.), 443; Scudder vs. Anderson,  34 Mich., 122; Kline vs. McCandless, 139 Pa. St.,  223.)

Where the owner of property levied upon, under a writ of execution  against another person, notifies the sheriff of his ownership and forbids the sale, this is tantamount to a demand for the property and renders the sheriff  liable if he  subsequently  sells  it.  (Vaughn vs.  Algaier,  27  Mo. App., 523.)   Also where  a claimant of property levied upon has taken the proper steps under the statute to protect his rights, until a trial thereof can be had, a sheriff who refuses to recognize  such  rights and sells in violation thereof, is liable.  (Houx vs. Shaw, 18 Mo. App., 45.)

If a sheriff takes the property of a third person, not the judgment debtor, he (the sheriff) is entitled to no indulgence.  The sheriff having misapplied his process,  whether by mistake or design, will make no difference.  He stands in the position of every trespasser and is liable to an action the instant the trespass  is committed.  The circumstance that the  property was in the possession of. the execution debtor at the date  of  the judgment, amounts to  nothing, except such possession may tend to  prove fraud.   (Boulware vs. Craddock, 30 Cal., 190; Vose vs. Stickney,  8 Minn., 51; Dodge vs. Chandler, 9 Minn., 87; Rankin vs. Ekel, 64 Cal., 446.)

The owner, whose property has been taken under a writ of attachment, to which he was not a party, has his choice of remedies.  He may sue in trespass for damages or for the recovery of the  property.   (Yardborough  vs. Harper, 32 Miss., 112; Gimble  vs. Acklex, 12  Iowa, 27.)

In the case of Forsythe vs. Ellis  (4 J. J. Marshall (Ky.), 298), the chief  justice,  speaking for the court upon  the question of the liability of a sheriff, for levying an execution upon a person not named therein, said:

"The reason why a sheriff is responsible  to the owner is a  very comprehensive one and  applies to all  persons who  take  the property  of  others without any authority. An execution against the goods of A gives no authority to the sheriff to take the goods of B.

"So long as the officer confines his acts to  the authority of the process, he is not responsible, but all acts which are not justified  by the writ are, of course, without authority of law.  The inevitable consequence, therefore, of the principle that no  man shall attach the property of another without the permission of the owner, or sanction of the law, is that no plea of  exemption or  station, however exalted or sacred, can exonerate a  trespasser.   This principle is conservative  of property.  Without its integrity and universality, private rights  would be  insecure  and  the law would be unequal and tyrannical.  The sovereign power of the State, with its eminent  domain,  can not take from the humblest citizen a particle of his property for public use, without allowing him just compensation.

"If an execution against one man would excuse the sheriff for taking and selling the property of another, every citizen would be at  his mercy and  none could  call his estate his own.   As the execution  gives the sheriff no authority, he has none, and therefore his sale neither devises nor confers any rights.  The owner of the  property,  therefore,  sold by the sheriff without authority, may recover from the sheriff its value in an action for trespass."

In  the  case of Lammon  vs.  Feusier  (111 U.  S.,  17), Mr. Justice Gray, speaking for the  Supreme  Court of the United States, said:

"The marshal (the officer corresponding to the sheriff) in serving a  writ of  attachment on mesne process, which directs him to take the property of a particular  person, acts officially.  His official duty is to take the property of that person, and of that person only; and to take only such property of his as is subject to be attached, and not property exempt by law from attachment.   A neglect to take the attachable property of that person,  and  a taking, upon the writ,  of the property of another person or  of property exempt from attachment, are equally breaches of his official duty.   The taking of the attachable property of the person named in the writ is rightful; the  taking of the property of another  person is wrongful;  *  *   *

"A  person other than the defendant named in the writ, whose property is wrongfully taken, may, indeed, sue the marshal (sheriff), like any other wrongdoer, in an action for trespass, to recover damages for the wrongful taking; and neither the official character of the  marshal  (sheriff), nor the writ of attachment, affords him any defense to such action.  (Day vs. Gallup, 2  Wall,  (U. S.),  97; Buck vs.  Colbath, 3 Wall. (U. S), 334)."   (Williams vs. U. S., 1 Howard (U. S.), 290; Watkins vs. U. S., 9 Wallace (U. S.), 759; Sharpe vs. Doyle, 102 U. S.,  686; Matthews vs. Densmore, 109 U. S., 216.)

In the case of Hibbard vs. Thrasher  (65  111., 479), the supreme court, in discussing the liability of an officer levying upon property not the property of the execution debtor, said:

"An officer seizes property at his peril, and if he errs he must  take  the consequences.  (Foltz vs. Stevens, 54  I11., 180.)

"*      *       *      *       *       *      * 

"It  is absurd to suppose that the claimant can not have his action against the officer for  taking his property and depriving him of the use of it.  (Abbey  vs. Searles, 4 Ohio State, 598.)"

In the case of Dunham vs. Wyckoff (20 Am. Dec, 695) the court said:

"Both upon principle and authority, it is easy to show that an officer, taking the goods of a person not the debtor in the execution, is liable as a trespasser.  A command to arrest the person,  or seize the goods of  A, is no authority against the person or goods of  B.   If  the officer having an execution against A undertakes to execute it upon goods in the possession of B, he assumes upon himself the responsibility of showing that such goods are the property of A. And if he fails to do this, he is a trespasser, and is obliged to return the goods to B.  (Thompson vs. Button, 14 Johns. (N. Y.), 87.)"

The case of Commonwealth vs.  Kennard  (8 Pickering (Mass.), 132)  was an action to recover goods wrongfully attached.  In deciding the case, the supreme court of Massachusetts said:

"The officer must judge,  at  his peril, in regard to the person against whom he is commanded to act  This is said to be hard, but it is a hardship resulting from the voluntary assumption of a hazardous office, and considering that in all cases of doubt the officer may require indemnity before he executes his precept, the hardship is imaginary."

In  the case  of  Duperron vs. Van Wickle (4 Robinson (La.), 59; 39 Am. Dec, 509) it was held that the sheriff must, at his peril, avoid seizing under execution any other property than that of the defendant.  It is not enough that he presumes, even on strong grounds,  that the property is the defendant's.  He must know that the property is the property of the person named in  the writ of execution. (Jamison vs. Hendricks, 18 Am. Dee.,  131.)

In the case of Aliens vs. Crary (10 Wendell (N. Y.), 349; 25 Am. Dec., 566), the court said:

"A sheriff is a trespasser  who  levies  upon goods  and chattels which are not the property of the defendant named in the execution."

In  the case of Bruen vs. Ogden (11 N. J., 370; 20 Am. Dec, 593), the court said:

"But if an officer having  an execution against A undertakes to  execute it upon the goods  in  the possession of B, he assumes upon himself the responsibility of showing that such goods are the property of A,  And if he fails so to do, he is a trespasser."

Cases to the same effect as the foregoing might be cited ad libitum.

It is admitted that the defendants in the present case had due notice in writing before the sale under execution took place.  No question is raised in the present case with reference to that provision of section 451 of Act No. 190, requiring a written notice by the person claiming the property attached under the writ of attachment against another.

It having been established that the property attached and sold was the  property of Romualdo Osorio and not the property of the judgment debtor, he, the plaintiff, is  entitled to have  said sale declared null and void and to have a return of his property.   To permit a person to be deprived of his  property  in the manner in which  the plaintiff was deprived of his  property  in the present action, without a right to have the sale declared null and void and the property returned to him,  would constitute one of the most flagrant cases of depriving a man  of his property, without due process of law, which could possibly come to the attention of the courts.  The lower court  committed no error in declaring said sale of  the parcels of land in question null and void and ordering a return of  the same to the plaintiff herein.   The judgment of the lower court is, therefore, hereby affirmed with costs.

Torres, Mapa, and Moreland, JJ., concur.