delivered the opinion oe the court.
In this case there is no evidence or pleading presenting a defense to the action. The attempt on the part of the appellee to prosecute his action against the sheriff and his sureties did not release the lien embraced in the deed, and there is no pretense that the money has been paid to the appellee. The proceeding instituted against the sheriff was really for the benefit of the county, as it was the duty of those in charge of the county finances to see that the debt *598was paid. This claim is unlike the ordinary allowances-, made to county creditors, where the latter can not look to ■ the sheriff and the sureties for payment when a levy has-been made to pay the debt. Here a contract was made with the county, by which the lien was retained, the vendor of the land being unwilling to relinquish his lien until the purchase money was paid. The county is in no better condition than any other vendee of the land could have been, and no question of diligence can arise as between the appellee and the county. He might have dismissed his-action at any time against the sheriff and resorted to his equitable action enforcing the lien, but instead of doing this he prosecuted the action against the sheriff and a part of the sureties until he recovered a judgment and had a return of no property found. That he failed to issue an execution like an ordinary assignee of a note in an action after judgment, did not affect his lien. He acted for the best interest of the county, and did nothing to release the sheriff' and his sureties from responsibility.
The court therefore acted properly in subjecting the land: to the lien of the appellant, and the judgment is affirmed.