By the Court.

delivering the opinion.

Can there be any doubt that Cloud, by going into a' court of equity, would be decreed to retain the balance of the money for which the land was sold, after satisfying the principal, interest and cost of the fi. fa. ? We apprehend not. The same principle should govern then in the decision of this motion. Cloud bought and paid Fulcher,. *254the defendant in execution, for the land. Tie went into possession. But it was incumbered by the older lien of the judgment. This he was obliged to discharge. Having done this, was he not entitled to hold on to the sur. plus of the sale? What claim had Eulcher to it? He had sold and conveyed to Cloud and received the full value of his property. Eulcher’s deed is an order to the sheriff, executed in the most solemn form, to account with Cloud for the money in his hands. Cloud is entitled not only to retain this, but to sue and recover from Eulcher the amount that he has been compelled to pay for his use.

If Eulcher chose to traverse the return of the sheriff, and contest the title of Cloud, he had ample opportunity to do so. He not only tendered no issue, controverting the facts, but by his silence acquiesced in the truth of the sheriff’s showing. The sheriff, it is true, failed to collect the $725 at his peril. The facts of the case having justified him, he is protected.

Judgment affirmed.