It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same is, hereby affirmed.

It appearing, however, that the issues presented and tried in the common pleas court did not involve the right of the plaintiff in error to recover the balance, if any, remaining from the sale of the property in question by the defendant in error after the deduction of all proper charges against :he same, it is ordered that the judgment in these *472proceedings shall be without prejudice to the right of plaintiff in error to maintain an action therefor.