The opinion of the court was delivered, by
Strong, J.
The assignments .of error in this case raise but •two questions. The one relates to the construction which should be given to the bond, and the other to the effect of the sheriff’s ■return to the executions -in his hands. When the bond was given, there were several executions in the sheriff’s hands, one against F. D. Lake, and the others against William Corley. Of course the executions were liens upon the personal property of the defendants. In virtue of one of them, at the suit of J. B. Evans, the sheriff had levied upon thirteen rafts of pine boards, as the property of Lake. These he placed in the possession of the plaintiff in that execution, taking his bond with sureties for the ■delivery of the rafts on the 24th of April 1856. But though *371levied upon as the property of Lake, the rafts appear to have been the property of Corley, and, as such, the sheriff had a lien upon them in virtue of the executions in his hands against Corley. Evans having thus obtained possession of the lumber, ran it out of the county before the day fixed for its delivery to the sheriff, and subsequently stayed his own execution against Lake. Having in this manner prevented the sheriff from making a proper sale of the lumber under the executions against Corley, he now contends that his bond bound him only to deliver the rafts to the sheriff to answer his own execution against Lake, and that, having stayed that, there was no breach of the bond by which the sheriff was damaged. But this was not the extent of the obligation which he and his sureties assumed. They bound themselves unqualifiedly in the sum of $10,000 to deliver the lumber to their obligee on the 24th day of April 1856. Their obligation was absolute. It was not merely to deliver so far as necessary to answer the execution against Lake, or necessary for any. specified purpose. They had nothing to do with the nature and extent of the sheriff’s ownership. It was not for them to inquire what claims he might have at the date of the bond, or at the time fixed for the delivery. But if the sheriff seized the lumber as the property of Lake, when in truth it belonged to Corley, he could not surrender it to Evans without being answerable to Corley or Corley’s creditors for its whole value, no matter what may have been the amount of. the execution against Lake. That execution was no measure of his interest in the possession of the property. Yet that entire interest it must be presumed the parties intended to secure by the bond, in the absence of any expression to the contrary, as fully as it would have been secured by the sheriff’s retention of possession: Watmough v. Francis, 7 Barr 215-16. It would be giving undue effect to the recital introductory to the defeasance, were we to hold that it restrains the liability of the obligors. It is explanatory of the sheriff’s possession, but nothing more. It is itself no part of the condition. Such being, in our opinion, the proper construction of the bond, it was not error to refuse to instruct the jury that failure to deliver the rafts was no breagh of the bond, for which the defendants were liable, if the property was not required to answer the execution against Lake.
The next question relates to the effect of the sheriff’s return to the executions against Corley. It was that he had levied upon the rafts on the 19th' day of April 1856 (the day after the bond was dated), and sold them on the 23d of April, under a prior execution. This, it is insisted, concludes the sheriff and establishes against him that he resumed possession of the lumber after the bond was given, and consequently that the obligors were no longer under obligations to deliver it.
*372Undoubtedly a sheriff is bound by his return, and a return of a levy is proof against him that he has taken possession of the, goods upon which the levy was made. In this case, as between the sheriff and the execution-creditors of Corley, the return would conclusively establish that' he had possession of the rafts on the 19th of 'April 1856. But the question now is between him and Evans, who was no creditor of Corley, and it is whether Evans can set up a false return which he fraudulently procured the sheriff to make. The verdict of the jury determines that the return was thus procured by Evans. If so, is it in law any return at a-Il ? Can he avail himself of it as an estoppel, or use it for any purpose ? The answer is plain. Fraud vitiates everything it touches. Even judgments fraudulently procured, are void, and sheriffs’ returns are no more sacred. And nothing is more clear than that a guilty participant in a fraud can derive no legal benefit from it. But it is argued that though Evans might be responsible for his fraud in an action of trespass upon the case, it cannot be made use of in this action on his bond. Not so. It is not sought now to recover damages for his tort, but to prevent his using the tort to relieve himself from his contract. By setting up the return as a defence to this action, he is setting up his own fraud and endeavouring to deduce a right from it. He is in effect the actor. This cannot be permitted. In no form of action can he, either as claimant or defendant, obtain an advantage from his own covin. He may lose, but he cannot gain. And certainly his sureties in the bond can, in this particular, stand in no better position than their principal. They assumed the same obligation that he assumed. The obligee has done nothing voluntarily to release them. And it was not in the power of their principal to release them by any act of his that did not discharge the bond. Much less could he release them by a fraud upon the obligee. The court was therefore right in refusing to affirm the defendant’s second, third and fourth points, and in leaving to the jury to find whether the returns and the sale were void in consequence of the fraudulent conduct of Evans, and instructing them that if the returns and sale were fraudulently' procured by Evans, and therefore void, they were no bar to the plaintiffs’ recovery.
Judgment affirmed.