
    Robertson v. Smith and Another.
    Vendor’s Lien. — Sheriee’s Sade. — A, as the assignee of B, recovered a judgment against C upon a promissory note. Afterwards, D recovered a judgment against C, and executions upon both judgments came to the hands of the sheriff, who sold certain real estate of 0 thereon to D, and applied the proceeds of the sale to the payment of A’s debt, and the residue upon the judgment of D. B afterwards recovered a judgment against C upon another note, and upon an execution issued thereon sold the same lands. Suit by B against D, alleging that the note upon which he had recovered judgment was given for a part of the purchase money of the said land, before that time sold by him to C; that before the purchase thereof by D at the first sale by the sheriff, he was notified by B that’he held other notes against C, given for purchase money, and that he intended to hold a vendor’s lien on the land. Prayer, that the overplus of the first sale bo applied on plaintiff’s judgment, and that the sale to D be set aside, &c.
    
      ITeld, that it could not be determined from the complaint whether B had a vendor’s lien on the land, and that the facts alleged were not sufficient to impeach D’s title to the land.
    APPEAL from the Washington Circuit Court. .
   Elliott, J.

Robertson, the appellant, filed a complaint against Smith, and Nicholson, the sheriff’ of Washington county. A demurrer was sustained to the complaint, and final judgment rendered for the defendants.

The only question here is, did the complaint state facts sufficient to constitute a cause of action ? The allegations of the complaint are so indefinite and confused as to render it very difficult to determine what are the facts presented by it. "We draw from it, in connection with two executions and the sheriff’s return thereon, which are made a part of it, the following state of facts: On the 19th day of September, 1865, one James Reynolds, as assignee of Ilenry Robertson, recovered a judgment in the Washington Circuit Courts against one Baker, for $128 80, exclusive of costs, on which' an execution was issued on the- 9th day of November, 1865, and placed in the hands of the sheriff of said county, to he executed. Some time in December, 1865, the defendant Smith also recovered a judgment against said Baker for $386 43, but in what court the complaint does not state. On this judgment, an execution was also issued and placed in the hands of the same officer. On the 20th of December, 1865, the sheriff levied the execution on the Reynolds judgment on a tract of land belonging to Baker, and having duly advertised the same, on the 27th of January, ,1866, sold it at public auction, at the court house door in said county, to the defendant Smith, for $537, he being the highest bidder, and executed to him a deed therefor. The proceeds of the sale were first applied to the payment of the execution on the Reynolds judgment, including the costs, leaving an overplus of $404 12, which was credited on Smith’s execution.

Afterwards, on the 20th of March, 1866, said Robertson recovered a judgment in the Washington Circuit Court against said Baker for $101, which, this complaint alleges, was recovered on a note given by said Baker as a part of the purchase money for the same lands sold by the sheriff* to said Smith on the execution in favor of Reynolds. On the 25th of April, 1866, an execution was issued on Robertson’s judgment, and placed in the hands of the sheriff of said county, who levied the same, by the order and direction of the plaintiff, on the same land previously purchased by said Smith on the Reynolds judgment. Notice of the time and place of sale having,been given, the sheriff’exposed the land for sale under said execution, on the 7th of July, 1866, and then sold the same to said plaintiff* for $125, he being the highest bidder therefor.

It is also averred in the complaint that the land was bid off at the sale under the Reynolds execution by one James A. Ghormley, for and as the attorney of the defendant Smith; that at and before the sale thereof the plaintiff gave duo notice that he held other notes against said Baker, which were given in part consideration of said land, and that he intended to hold a vendor’s lien thereon for the same; and that said Ghormley afterwai’ds bid off said land with full notice of said facts. The relief prayed is a decree that the overplus of the proceeds of the sale to Smith on the Reynolds execution, utter satisfying that execution, be applied to the plaintiff’s judgment, in satisfaction of his lien, and that the deed of Smith be set aside and declared void, and the sheriff be ordered to execute a deed for said lands to the plaintiff.

H. Heffren, for appellant.

J. A. Ghormley, S. E. Perkins, L. Jordan and S. E. Perkins, jr., for appellees.

Such are the allegations of, the complaint, and it certainly needs no argument to demonstrate that they are not sufficient to constitute a cause of action. Whether the plaintiff’ is entitled to a vendor’s lien against the land, which he can enforce in equity by a proper suit for that purpose, cannot be determined from the facts presented by this record. There is an indication in this complaint, that the note on which the Reynolds judgment was recovered was given in part consideration for the same land. If so, whether it was first due, and had priority over the note on which the appellant’s judgment was rendered, does not appear, though it may be very material in-determining the rights of the parties, in a proper suit for that purpose. There is nothing in this complaint to. impeach the title of Smith under his purchase. The Circuit Court did right in sustaining the demurrer to the complaint.

The judgment is affirmed, with costs.  