Oliver H. Smith .recovered a judgment against Wilson and others ; execution was issued thereon and levied upon part of a certain lot in the city of Indianapolis, which at the sale Davis bid off, paid the bid, and took a deed. The purchase money was, a great part of it, paid to Smith. The execution defendant had no title to the lot in question. These facts appear by admissions in the record.

It was then proved by the plaintiff, Davis, who. sued the execution defendants, and. the executors of Smith, for said money so paid, that Smith directed the levy to be made; that a written memorandum of the description of the land to be levied on was furnished by Smith's son-in-law to his attorney, who gave it to the sheriff; that the sheriff copied it on a piece of paper, whether correctly or not witness could not state, and that Smith stated, when the money was demanded of him, that the levy had been by mistake. There was no proof that Smith, or any one for him, was present at the sale, or even spoke to the plaintiff about the purchase.

The complaint contains an allegation of fraud upon the part of Smith. Whether proof of such allegation, in the* absence of other averments and proof, not in this record, would *136authorize a recovery, we need not decide; as we are clearly of opinion that there was no evidence to sustain such allegation of fraud.

The judgment is reversed as to appellants Love and Smith, executors of Smith. Cause remanded, &c. .