This is an action against the defendant Graves as Sheriff, and the sureties on his official bond, for a breach of such bond. The cause was tried by the Court, a jury having been waived, and judgment passed for the defendants. Plaintiff moved for a new trial, which was denied, and he appealed from the judgment and the order denying a new trial.

It is averred in the complaint that on the 23d of August, 1876, the plaintiff commenced an action in the District Court for Monterey County, against one Darius Finch and Charles Shinn for the recovery of about eight hundred and fifty dollars ; that the defendants having been served with summons, failed to answer, and judgment by default was, on the 23d of October, 1876, entered against them in favor of plaintiff for eight hundred and forty-six dollars and costs; that on the day the action was commenced a writ of attachment was regularly issued, which came to the hands of defendant Graves, Sheriff as aforesaid, and was by him, on the 24th of August, 1876, levied on certain wheat in sheaf and barley in stack, part of same being on Sheehy’s land, and the other portion on the land of Rowe, which had been rented by Finch; that the *451 wheat and barley seized on the Sheehy tract was the property of Finch & Shinn, and that on Rowe’s land was the property of Finch; that the property so levied on was, when seized under the writ, more than sufficient in value, after deducting all costs, charges, and expenses of every ldnd for harvesting and otherwise, to pay off and satisfy the claim of plaintiff in said action and the judgment therein recovered; that said property was never released from the attachment, and was not exempt from execution; that after the recovery of the judgment of 23d of October, 1876, a writ of execution was issued on said judgment and came to the hands of the Sheriff, Graves, on the 3d of November, 1876. The mandate of this writ of execution was in the usual form required by law. That the property attached was in Monterey County, and was the personal property of the debtors at the time it was attached. It is further alleged “ that the Sheriff was in duty bound to hold and retain the attached property as security for the judgment and execution issued thereon, and to make out of the same the moneys by said said writ of execution commanded to be made; that said Sheriff has disregarded his said duty and has failed and neglected, without the authority, consent, or other interference of the plaintiff, to collect said moneys, or make due return thereof as commanded by said writ, except the sum of three hundred and nineteen dollars gold coin, as aforesaid, but no inore, which said sum was paid to this plaintiff on or about December 1st, 1876; that said Sheriff, on January 8th, 1877, made return of said writ of execution, partly paid and satisfied, to wit: The sum of three hundred and nineteen dollars, as aforesaid, but not further or otherwise, and has wholly and wrongfully failed and neglected to collect and make return of the moneys, as commanded and in duty bound under said writ, for the satisfaction of the balance of said judgment, interest, and costs; that said balance is the sum of five hundred and eighty-two dollars and six cents, and legal interest thereon from January 1st, A. D. 1877,” and no part of the same has been paid or in any way satisfied. It is also averred that the judgment debtors, Finch & Shinn, had no property, real or personal, at or within the dates mentioned in the complaint, in said Monterey County or elsewhere, except the property attached.

*452 The decision of the Court is as follows :

The only points to which our attention is called are the insufficiency of the evidence to justify the decision of the Court, and that it is against law.

Is not the decision against law ? It is found by the Court, that in the summer of 1876, Finch & Shinn were engaged as partners in farming in the county of Monterey, and rented from plaintiff Sheehy for that season - acres of land. Then the wheat and barley that were grown on this place were partnership property. This was the grain that was levied on by the plaintiff under the writ of attachment. This levy was made on the 24th of August, 1876. It is found that it (the levy) was made upon the interest of Finch & Shinn, in the two parcels of land (Sheehy’s and Rowe’s), and the crop growing on the same; that Jackson’s mortgage was executed on the 21st of August, 1876, and was forthwith properly recorded ; that at the date of the execution of this mortgage, most of the grain was cut upon both places, and the greater part of it had been stacked; that Jackson, upon receiving the mortgage, went on both places and examined the crop, and placed a man in charge of the crop; that at the time of the levy of the attachment, parties representing Jackson were in possession and occupation of both fields, and the Sheriff was by them informed that Jackson claimed an interest in these crops.

It' is averred in the complaint, and not denied in the answer, that judgment was recovered by plaintiff in the action of Sheehy against Finch & Shinn, on the 23d of October, 1876, for eight hundred and sixty-four dollars and sixty-five cents; that on this judgment a writ of execution was sued out which came to the Sheriff’s hands on the 3d of November, 1876. It is further found that it was agreed between the plaintiff Sheehy, the Sheriff, and Jackson, that the latter should thresh and sack the grain and deliver to the Sheriff whatever belonged to the Shinn interest under the attachment.

It appears from the findings that Jackson did thresh and sack the crop, delivered none of the grain to the Sheriff, but *455 sold it himself and paid to the Sheriff three hundred and nineteen dollars as the part belonging to the Shinn interest, which was applied by the Sheriff upon the execution, leaving a balance of the judgment unsatisfied, amounting to five hundred and eighty-two dollars and fifty cents, with interest from the date of its rendition. The amount of grain threshed and sacked is found, but its value is not.

It was the duty of the Sheriff to have taken possession of the Shinn interest, and have sold it in the manner required bylaw. Jackson had no mortgage on the Shinn interest, and the Sheriff should have looked after that interest, and taken possession of it when threshed and sacked, under the facts as found by the Court. The Sheriff had no right to sell at private sale, nor to authorize any one else to do so, (Code Civ. Proc., §§ 691-694) His duty was to give notice of the sale of such property by posting written notices thereof in three public places in the township or city where the sale is to take place, for not less than five nor more than ten days. He is liable to a severe penalty for selling without such notice. He is required to sell to the highest bidder at auction, between the hours of nine in the morning and five in the afternoon. “When the sale is of personal property, capable of manual delivery” (as in this case), “it must be within view of those who attend the sale, and be sold in such parcels as are likely to bring the highest price.” It makes no difference that Jackson obtained the highest price for the grain. He had no claim on it. The only figure it should have cut in the case, would be that the amount realized, when paid over to the plaintiff might be allowed to go in reduction of damages. The conclusion of law drawn by the Court was not a proper deduction from the facts found. The Sheriff did not use due and proper diligence in executing the writ of execution in the Sheehy case, but, on the contrary, was in default. The default comes within the breach of the bond assigned, and the breach is fully made out by the testimony. The decision is against law, and the judgment and order should be reversed, and the cause remanded for a new trial.

We have considered this case upon the findings of the Court, and on these, as we have seen, the judgment and order must *456 be reversed. But we are also of opinion that some of the findings on material matters are not sustained by the evidence.

There was no evidence to sustain the finding that the plaintiff agreed with the sheriff and Jackson that the latter should thresh and sack the grain. It is clear from the testimony that the plaintiff had nothing to do with any such agreement.

The evidence does not sustain the finding that at the date of the mortgage to Jackson most of the grain was cut upon both the Rowe and Sheehy places, and the greater part of it had been stacked. The evidence shows that all the grain had been cut and was in sheaf and stack. If it was not cut, it did not pass to Jackson under his mortgage by its terms, for that mortgage only transferred to Jackson “ all the wheat and barley now in sheafs and stacles, grown and raised the present season and now being” on the two places, describing them. If it was as found by the Court, the default of the Sheriff was greater, for it was his duty to take possession of that not cut—not in sheaf and stack.

The case demands some other observations. If the crop raised on the Sheehy place was partnership property, what right had Jackson to take possession of it to the exclusion of Shinn, the partner from whom he had no mortgage ? As against Jackson, who had a mortgage only of the interest of Finch, which interest could only be determined after a settlement of the accounts of the partnership, when it might have turned out that Shinn was entitled to the whole (Civ. Code, § 2405)," Shinn had a right to the possession, and under these circumstances it was the duty of the Sheriff, having in his hands the execution against both the partners, to take possession of all the grain on the Sheehy place. Shinn could, not be deprived of the possession of the whole by the assignment by his partner of his interest. The Sheriff neglected his duty and was guilty of a breach of his bond as set forth in the complaint, in not taking possession of the whole grain, at least on the Sheehy place, as he was ordered to do.

The judgment and order are reversed and the cause remanded.

Sharpstein, J., and Myrick, J., concurred.