The opinion of the court was delivered by

This was a proceeding in the district court of Leavenworth county by F. Kothman, to amerce John W. *185Prest, sheriff of said county, for refusing and neglecting to pay on demand to the plaintiff in error $664.89, collected by him, with other moneys, upon a special execution or order of sale in an action tried in Leavenworth county, wherein E. H. Skaggs was plaintiff, and E. J. Myers, Herman Markson as administrator of the estate of J. J. Myers, deceased, and F. Kothman and others, were defendants. The sheriff retained of the $664.89, the sum of $352.20 as costs, and paid out the remainder, $312.69, to redeem from taxes the lands sold by him under a special execution. It seems to be admitted that the sheriff properly retained the costs, excepting $246.20, which E. M. and E. H. Skaggs were adjudged to pay. The costs made by E. H. and E. M. Skaggs, in the action of E. H. Skaggs against E. J. Myers and others, were no lien upon the premises sold by the sheriff, and ought not to have been indorsed upon the special execution issued December 30,1882; nor ought such costs to have been retained by the sheriff from the proceeds of the sale of the land. E. H. and E. M. Skaggs were totally defeated in the action of foreclosure, the mortgage under which they claimed being declared fraudulent. The real estate attached by Kothman was not liable in any respect for the costs made by the Skaggses in their attempt to enforce their void mortgage. Judgment was rendered against them for these identical costs, and that judgment has never been reversed or set aside. These costs stand against the Skaggses, and upon no principle that we can conceive of are the lands of the Myers estate, or their proceeds, liable therefor.

I. Sheriff, when not to he amerced. Notwithstanding all this, the sheriff ought not to be amerced for refusing or neglecting to pay over to the plaintiff the $246.20 retained as costs, for the reason that Kothmaffs attorney placed in his hands the execution upon i • i . i • i i . . ,i x j? which. there were indorsed costs to tne amount or . „ „ $367.35. The said $246.20 is a part of the same. These costs were not coming or due to Kothman, and while it is true that the sheriff might, by the direction of Kothman or his attorney, be restrained or limited in the execution of the process placed in his hands to any act which *186was within his general authority under the execution, neither Kothman nor his attorney could, after the sale of the real estate mentioned in the execution and the confirmation thereof, arbitrarily direct him concerning the costs taxed by the clerk and indorsed upon the writ. Instead of attempting to amerce the sheriff for retaining the $246.20 as costs, Kothman should have had his writ corrected, or the costs retaxed by the court, or proceed by some other means to have the costs, for which E. H. and E. M. Skaggs are liable, separated from the other costs in the case.

The statute authorizing the amercement of a sheriff must be proceeded under with great strictness, and he who would avail himself of the remedy must bring himself both within the letter and spirit of the law. The remedy is summary, and its consequences highly penal. In the matter of these costs, the sheriff attempted to comply with the very terms of the process placed in his hands, and it would be grossly unjust to say that because he followed the directions of this process, issued by the court of which he is the officer, that he must pay to Kothman, who put such writ in his hands, the costs demanded, together with penalties. We cannot ascertain from the findings that prior to the sale of the land under the special execution, that either Kothman or his attorney gave any instructions to the sheriff concerning these costs, or made any request upon the sheriff that he should not collect the same. Indeed, we do not perceive from the record that the plaintiff gave any directions whatever to the sheriff outside of the terms of the writ, until he had executed the same so far as selling the land therein described.

*188% SamerSfí *186As to the refusal of the sheriff to turn over to Kothman the sum of $312.69, alleged to have been paid out by him for the redemption of the land from the taxes for the years 1879, 1880 and 1881, we reach a different conclusion. The special execution, of December 30, 1882, and the judgment upon which it was issued, commanded the sheriff to pay all the legal taxes due on the land before paying any of the proceeds of the sale to Kothman. The land was sold to Elise Born*187hauser on February 10,1883, for $3,225; before the confirmation of the sale she had sold the land for $5,500, and agreed with Kothman to take up the outstanding tax titles and certificates. On May 9, 1883, her sale was confirmed and a sheriff's deed ordered to be executed to her. After making her bid upon the premises at the sheriff's sale, Mrs. Bornhauser purchased of one Osborn the outstanding tax titles and tax certificates for $1,500, and then made application to the district court for an order on the sheriff to pay the taxes on the land for 1879,1880, and 1881. After the confirmation of her sale, and on May 19,1883, her motion was overruled, yet subsequently the sheriff paid $312.69 to redeem the land from the said taxes for 1879, 1880, and 1881. At this time he knew of the agreement between Mrs. Bornhauser and Kothman, that she was to take up all the outstanding tax titles and certificates upon the premises, and also knew that the tax certificates had been purchased by and then belonged to her. The purchase of the tax certificates by Mrs. Bornhauser, under her agreement with Kothman, was a redemption of the land from the taxes embraced therein, and there were no legal taxes against the premises on May 21, 1883, to be paid by the sheriff. The very money which the sheriff paid to the county treasurer was delivered by the treasurer over to Mrs. Bornhauser, and the sheriff might as well have paid the money directly to her as to have made the payment in the circuitous manner he did. Again, the payment by the sheriff to take up the tax certificates of 1879, 1880, and 1881, held by Mrs. Bornhauser, was against the objection of Kothman and over his offer to imdemnify him; hence there was no reasonable excuse for his action. The writ in his hands did not justify him in paying these taxes, because the land had already been redeemed by Mrs. Bornhauser. Kothman, for whose benefit the execution was issued, protested against the payment of these taxes, and went so far as to offer to give bond to save the sheriff harmless. For some reason, unexplainable to us, the sheriff disregarded the instructions of Kothman, and, ignoring the agreement between Kothman and Mrs. Born*188hauser, improperly paid out $312.69 from the moneys received by him upon the execution. For this sum the sheriff should be amerced, with damages and costs. The order of the district court made June 2,1883, ratifying the acts of the sheriff in redeeming the land from the tax-sale certificates owned by Mrs. Bprnhauser, is no protection to him, for it was made without notice to Kothman, the party interested, and was also made after the confirmation of the sheriff’s sale, and after the district court had overruled the motion of Mrs. Bornhauser directing the sheriff to pay these taxes. After the confirmation of the sale and the direction to the sheriff for the execution of a deed to Mrs. Bornhauser, the matters affecting the sale of the land were closed, and unless reopened or set aside upon motion with notice, could not again come up in the court for consideration, or in any way affect the rights of Kothman. It is urged that the agreement between Kothman and Mrs. Bornhauser was without consideration, but this agreement was made before the confirmation of the sale, and Kothman might have interposed objections to the confirmation, but for the agreement with Mrs. Bornhauser. After Mrs. Bornhauser took up the tax certificates for 1879, 1880, and 1881, and thereby redeemed the land from all taxes due thereon, the public had no interest in having the sheriff or any other person return to her any part of the money paid. In law, the taxes had all been satisfied.

Finally, as another reason for denying the motion of Kothman to amerce the sheriff, it is urged that as the written demand vras for the gross sum of $664.89, the notice to the sheriff was not in accordance with the statute. We do not think that a notice and motion under the provisions of § 472 of the code is insufficient simply because the amount therein named is overstated. Of course upon hearing, the sheriff is to be amerced only for the exact sum which is due the party instituting the proceedings, but the motion filed in this case specifically sets forth that Kothman claims $312.69, “ retained by the sheriff out of the proceeds of the sale of the lands.” *189Therefore, as to this sum, the sheriff had actual notice of the exact amount demanded.

The judgment of the district court will be reversed, and the cause remanded with directions to the court below to amerce Prest, as sheriff, in the amount of $312.69 and costs, with ten per cent, thereon to and for the use of Kothman.