
    ABRAHAM D. HAHN and JOSEPH RHOADS against LEONARD SMITH.
    The land of D. H. having been levied, and advertised for sale by the ' sheriff on a •venditioni exponas, before the day of sale, D. H. by a verbal agreement, transferred the surplus of what the land might sell for, beyond the payment of incumbrances, to L. S. to indemnify him against certain liabilities. Two days after the sale, before the deed was acknowledged, and before all the purchase money was paid, A. D. H. entered a judgment against D. H. and issued a ji. fa. with directions to the sheriff to retain the 'surplus. Held: That the judgment entered after the day of sale was not a lien on land; and that the Ji. fa. could not take the money, because the agreement between D. H. and L. S. was a legal transfer of it before it issued.
    Error to Union county.
    This was an amicable action, in which Leonard Smith was the plaintiff, and Abraham D. Hahn and Joseph Rhoads were the defendants. It was an issue to try the right to money in the hands of the sheriff which arose out of the sale of the real estate of Daniel Huntzecher,. under the following facts:
    Judgments had been obtained against Huntzecher to the amount of two thousand six hundred and six dollars and fifty-three cents, upon some of which executions were issued, and levied upon his real estate, and which was advertised for sale by the sheriff. Leonard Smith, the plaintiff was security in two debts which Huntzecher owed, amounting to about three hundred and sixty one dollars, and which were not secured by judgment. After the property was advertised, and before the day of sale, Smith went to Huntzecher, to know how he would secure him against the payment of the two debts for which he was his bail; Huntzecher replied that he had no way to save him, unless he would buy the property at the sheriffs sale; that it was worth more than the amount of the judgments against it, and if he would buy it, he should have the surplus as an indemnity against the payment of those claims. Smith, in pursuance of - this agreement, made an arrangement with the judgment creditors of Huntzecher, which enabled him to buy the property at sheriffs sale, and it was struck down to him by the sheriff on the 27th June, 1829, for two thousand nine hundred and seventy five dollars. On the 7th July, 1829, Huntzecher gave Smith a written order on the sheriff to pay him the balance of the purchase money after the payment of the liens. On the 16th of September, 1829, Smith having paid all his purchase money, the sheriff acknowledged the deed to him. Smith, in pursuance of the agreement and order of Huntzecher, .then claimed three hundred and five dollars and thirty-six cents, from the sheriff being the balance after the payment of the liens, which existed against the land on the day of sale.
    
      This balance was claimed also, by Hahn and Rhoads, under the following circumstances. On the same day Huntzecker's land was sold, but after the sale, he executed a judgment bond to Hahn for two hundred dollars, which was entered on record on the 29th, June, 1829, and upon which, on the 1st August, 1829, an execution issued, with direction to the sheriff to levy upon, or retain this • balance of three hundred and five dollars and thirty-six cents.
    
      Rhoads, on the 1st July, 1829, obtained a judgment bond from Huntzecker, which was entered of record op the 14th July, 1829, and which he claimed to be a lien on the land, and entitled to the residue of this balance, after the payment of Hahn's judgment and execution.
    The court below, (Chapman, president,) was of opinion, that the judgments of Hahn and Rhoads, entered after the sale by the sheriff, were not liens upon the land, although the deed to the purchaser was not acknowledged until a subsequent time; and that the acknowledgment of the deed had relation back to the time of sale.
    The court was also of opinion, that the agreement between Huntzecker and Smith, in relation to the surplus after the payment of liens, and the order of Huntzecher to the sheriff, in favor of Smith, was a legal appropriation or transfer of that surplus, and therefore the execution in favor of Hahn was not a lien upon it in the hands of the sheriff. Judgment was therefore rendered for the plaintiff. To which opinion the defendants excepted.'
    
      Sterrett, for plaintiffs in error.
    
      Merrill and Lashells, contra.'
   Judgment affirmed. ■  