By the Court.
McDonald J.delivering the opinion.
The issue made up on the Sheriff’s answer and amended answer to the rule, does not seem to have been submitted to a jury. I presume the presiding Judge passed upon the facts as well as the law of the case, by the consent of parties. If so, was the decision in accordance with the law of the case ?
It was a proceeding against the Sheriff to compel him, in a summary way, to pay over money in his hands, or which ought to have been in his hands, raised on the sale of the^propertylbf the defendant in execution. He *484sold the property for a sum of money sufficient to pay the execution of the plaintiff, and if there be no sufficient reason wherefore he does not pay the plaintiff the amount due him, the rule ought to be made absolute against him. It seems that the vendor of the house and lot to the defendant in execution, which were levied on and advertised, claimed that a part of the purchase money was still due him, and he insisted on his lien for the amount unpaid, and that he had filed a bill in equity to enforce it. The property had been advertised to be sold on a sale day prior to that on which it was sold, and the sale was postponed because the plaintiff would not recognize the vendor’s lien, and agree that it should be paid.
On the day on which it was sold, the Sheriff announced publicly, to persons present at the sale, that the vendor of the house and lot, had a lien thereon for the purchase money, which would be paid from the proceeds of sale. It appears from his answer, that he was so informed by Carroll, who controlled one of the fi. fas., and who, we suppose, became the purchaser of the property at Sheriff’s sale, from the fact, that he extinguished the vendor’s lien, without passing the money through the hands of the Sheriff. While the Sheriff was offering the property for sale, and after the announcement was made by the Sheriff, the plaintiff, Bottoms, was seen by two of the witnesses, in the company, and he endeavored to get information and advice from one of them, as to his rights in the matter. If he was present at the sale, which the presiding Judge in the Court below had a right to infer, and made no objection to the sale on the terms proclaimed by the Sheriff, he is not entitled to this summary remedy against the Sheriff, without proof of collusion between the Sheriff and Carroll, who made a false statement to the Sheriff, in respect to the consent of the parties to the payment of the vendor’s lien from the proceeds of sale.
If Carroll became the purchaser, and still holds the.property, what is to prevent a re-levy and sale, provided he did *485misrepresent to /he Sheriff the agreement or consent of parties as aforesaid ?
Upon a consideration of the entire case, we think the presiding Judge, on the hearing of .the rule, gave a proper and legal direction to it.
Judgment affirmed.