OPINION,
Me. Chief Justice Paxson :Complaint is made in the first assignment that the learned cm rt below erred in charging the jury that “ where there is a lien ci editor and he claims the proceeds of the sale, we think *9then, if the sheriff distributes it, be does so at his own risk. Where there is a lien creditor, he is not simply dealing ‘party with party, outside of court,’ as is said in one case cited here. He is dealing as a sheriff, and the act of his in taking a lien creditor’s receipt is an official act in his official capacity as sheriff.”
We are unable to see any error in this instruction. And such rule imposes no hardship upon the sheriff. If, in this instance, he had followed the act of assembly and made the special return therein pointed out, he would have been in no peril, and would have suffered no loss. Instead of making such return and placing himself within the protection of the law, he merely returned that he had sold the real estate for the sum of $2,085, and took the receipt of the purchaser, who was also a lien creditor, for the amount. It so happened that there was a charge upon the land which did not appear upon the searches. This charge, the plaintiff, who was the high sheriff of Venango county at the time, has been obliged to make good, and he now sues the lien creditor, whose receipt he took, for the money which he was thus obliged to pay. Upon the trial below the learned judge gave the jury a binding instruction to find for the defendant. We see no error in this.
The statute of limitations was a bar to the claim. Our attention has not been called to any such fraud in the case as would toll the statute. Osmer does not appear to have made any false statements to the sheriff which induced him to take Osmer’s receipt. Nor is there any clear evidence that he knew these legacies were a charge upon the laud. He might well have known of their existence, and yet not have been aware that they were a lien. Had there been evidence that he had such knowledge, that he concealed it from the plaintiff, and by means of such concealment induced the sheriff to give the receipt, there might have been ground for the position that the statute would not run until the discovery of such fraud and concealment. But, as the case stands, it is merely the assertion of the claim of a lien creditor to receipt for the purchase money, and the unwise acquiescence of the sheriff thereto, without protecting himself as ho might and should have done, by a compliance with the law specially provided for that purpose.
Complaint is made in the fifth assignment that the court *10erred in not charging and submitting to tbe jury tbe liability of tbe defendant upon tbe second count in tbe plaintiff’s statement, viz.: “ Tbe promise made by bim to indemnify tbe plaintiff, wbicb promise was made witbin six years prior to tbe commencement of this suit.” It might perhaps be sufficient to say, in answer to this assignment, that there is nothing before us to show that tbe learned judge was asked to pass upon any such question. But if be bad been, there was not sufficient evidence to base it upon. There was no proof of a promise “ to indemnify ” tbe plaintiff. Tbe only witness upon this point was the plaintiff himself. Taking bis testimony as a whole, it did not come up to tbe standard of indemnity. It was vague and uncertain.
Judgment affirmed.