1. We have no fault to find in this practice of Judge Johnson in cases like the present. Something of the sort would seem to be necessary for the intelligent administration of the law. There is a fund in the sheriff’s hands for distribution. It is hardly possible, if there be several claimants, to do justice between them in such a way as that the record shall show what has been done without requiring just such a statement to be made by each party as the judge required in this case. The jurisdiction is an equitable one, and we would be very slow to interfere with any practice which, without doing injustice, shall have the effect to reduce into order and method the inevitable confusion which must arise in such cases where the parties are permittéd to state by parol the nature and dignity of their claims, leaving the court to grope among the papers for the true points of the controversy.
2. As we said in the case of Walton vs. Jones, at this term,, we recognize that during the time the judgment of the court, in such cases, is in the breast of the judge, it may be opened by him at his discretion, yet to justify an interference by this court the refusal to interfere must be grossly unjust. Necessary rules of order require that a point once made and
3. Previously to the Code, it was necessary to file a bill to get at the right of the defendant in' property situated as this was. His right was a purely equitable one. The land was the property of the vendor, and subject to levy and sale as his property. Taking this statute altogether, it is evident that the intent was to give the plaintiff in fi. fa. the right to do exactly what equity would have decreed, to-wit: to sell the land — the whole title — pay the vendor out of the proceeds all that was due him, and appropriate the balance to the judgment. To do this, we think the act must be complied with. If the levy be merely of the defendant’s interest, or on the laud as his property, the purchaser, if he gets anything, clearly ought only to get the defendant’s interest, and if so, the vendor lias no interest in the proceeds. He still holds the title, and he may proceed as though there had been no sale. If his (the vendor’s) title is sold, then, and then only, can he claim the proceeds.
4. Nothing was done here indicating that the whole interest
Judgment affirmed.