The opinion of the court was delivered by

Levi Crouse bought by articles of agreement from Jacob Crouse a tract of land, then charged with liens; and shortly afterwards others were entered. This, together with a charge attempted to be established that the purchase was in fraud of creditors, having embarrassed the completion of the title, he bought one of the prior liens and had the land sold upon it by the sheriff, and became himself the purchaser for a sum considerably exceeding the prior liens and for a small sum over his contract price. To whom does this latter surplus belong ? It is plain enough that it belongs to Levi; for the subsequent liens were good only against the unpaid purchase-money, and after the discharge of the prior liens.

It is argued that by having the land sold, he abandoned or extinguished the contract. But that depends upon an intention that nowhere appears, and upon the right to abandon which does not seem to us to have existed. The embarrassments to the perfecting of the title are sufficient to account for and justify this mode of perfecting it or getting clear of it by a sheriff’s sale, and prohibit us from treating his act as an abandonment of it. If, by this procedure, he gained any undue advantage over others at the sale, the court below would have corrected it. If his contract *144was a fraud upon creditors, they could have shown it, and the surplus would have been theirs. We think, too, that the execution cogts must come out of the proceeds, and not out of Levi’s share; for, the charge of fraud being abandoned, we find no fault in him.

Decree. — This case came on for hearing at the present term, on the appeal of Levi H. Crouse from the decree' of distribution of the Common Pleas of Chester county, and was argued by counsel; and on full consideration thereof, it is. ordered and decreed that the said decree be reversed, and that the money in the Court of Common Pleas in the said case be paid to the said appellant, to wit, the sum of one hundred and thirty-four dollars; and that the appellee, Matthew Stanley, do pay the costs of this appeal; and the record is remitted to the said court for execution.