The opinion of the Court was delivered by
Wright, A. J.There were two judgment creditors of Mrs. Nancy Gibson. She was possessed of land which was levied upon and sold under the execution in the junior case. The funds arising from the sale being in the hands of H. Wall, then Sheriff of Edgefield County, the contest was between the two judgment creditors as to how said funds should be applied.
The costs on the execution in the junior case were regularly taxed. The senior judgment creditor gave notice to the Sheriff before the sale that the money arising from the said sale should be applied to his judgment, and after the sale a rule was served upon the Sheriff requiring him to show cause why all the money received by him from the sale of the land of Mrs. Nancy Gibson should not be applied to the payment of the senior judgment. The rule was answered by the Sheriff, and the plaintiff in the junior case stated that all the said proceeds of sale had been applied to the senior judgment except so much thereof as were required to pay the costs and disbursements and expenses of the sale of the land in the junior case, the sale of the land having been made under the execution in that ease, and that the whole costs and expenses of the case should be paid out of the funds arising from said sale.
After hearing the return, His Honor the presiding Judge, on the 20th day of November, 1875, made the following order:
*358“That H. Wall, late Sheriff, do pay to the said senior plaintiff or his attorney the whole balance of $500 for which the land was sold on or before the first Monday in January, 1876, and that failing to do so he be attached for contempt of the order of this Court.”
From this order the junior judgment creditor and H. Wall, late Sheriff of Edgefield County, appealed on the 27th day of the same month and stated the grounds of their appeal.
On the 29th day of November, 1875, on motion of the attorney for the senior judgment creditor, the order of November 20 was modified by His Honor Judge R. B. Carpenter, as follows:
“That said Hardy Wall is hereby directed to pay over, in accordance with the terms of the original order, the whole balance of the $500 received by him from the sale of the land of said Nancy »Gibson on the judgment of said Ambrose Gibson, after deducting his fees, commissions and expenses of said sale, said fees, &c., to be confined to the sale and not extend to the tax costs of the suit— only to the sale of the property.”
It is thus perceived that the order of November 20th, 1875, is so modified by the order of November 29th as to allow the “expenses of sale” incurred under the junior execution to be paid out of the proceeds of the sale. The appropriation of the proceeds thus directed was in strict conformity with the long-established practice, maintained and confirmed by numerous decisions, to be found in the reports. The appellánt, however, contends that after his notice of appeal the Court was without jurisdiction to modify the order, but in no point of view is the exception well taken.
The question arose on a rule against the Sheriff, which had resulted in an order for his attachment unless he paid over to the oldest judgment the whole proceeds of the sale.
If it appeared to the presiding Judge before his order had been executed that the conditions on a compliance with which the sale could only be discharged were in excess of those which should lawfully have been imposed, while the order was under his control, the time not having expired, we can see nothing which prevents his reforming it to meet the justice and law of the case.
The exception, however, could not well be interposed by the party in whose favor the modification was made. The motion is dismissed.
Moses, C. J., and Willard, A. J., concurred.