Mr. Justice Terry concurred.

A mandamus will not lie against a sheriff to compel him to make a *92deed of land to a purchaser at execution sale who refuses to pay the purchase money for the reason that he is the oldest judgment and execution creditor and entitled to the money; especially when there is an unsettled contest as to the question of lien.

The principle involved here was settled in the case of The People ex rel. Kohler v. Hays, decided at the January Term, 1855, (5 Cal. R.)

Judgment reversed.