The opinion of the court was delivered,
by Thompson, J.When the plaintiff obtained judgment on his conditional verdict in ejectment, it was a judgment for costs, as well as land, and in event of the judgment becoming absolute, he would have been entitled to a delivery of the land and process for costs. This is the plain course in cases of this kind. But it was agreed, as appears by the record, that on failure to make payment at the times fixed by the conditional verdict, the land should be sold under the directions of the court, and the money thus raised applied to the payment of the purchase-money. If anything beyond this was realized, it would go to the vendee. This gave a double advantage to the vendee; the opportunity to pay by the day, and the advantage in the advance of the property, if he was not able to pay. And now it is contended, that in addition to this it gave the vendee the advantage also of getting clear of the costs of the judgment in the ejectment, the vendor being obliged to bid on the land in order that he might not lose both land and money. This would be very inequitable surely. We look upon all this but as a mode of restoring possession to the plaintiff under the judgment. No deed to him was absolutely necessary, for he held the legal title all the time. We regard the effect to be just the same, at least so far as the costs are concerned; as if the property had been delivered in the ejectment for non-performance of the conditions of the verdict. That would have extinguished the purchase-money, but not the costs. ■ This is not a question on distribution of proceeds of sale, but simply of liability for costs, and there is no law which can be cited, which will deprive the plaintiff of his execution for costs.
The order of the court overruling the motion for leave to issue a fi. fa. for costs reversed, and procedendo awarded.