
    Case 96 — VENDOR’S LIEN
    February 14, 1884.
    Carter County Court v. Butler.
    APPEAL PROM CARTER CIRCUIT COURT.
    1. Appellee, who had sold to appellant a tract of land for the purposes^of a “ poor house,” and retained a lien in his deed of conveyance, did not waive his lien by obtaining-judgment against the sheriff of Carter county and his sureties, the court having made a levy to meet appellee’s demand.
    '2. His lien is not affected by the suit, nor the judgment, nor his failure to obtain a return of “no property found.”
    8. The county is in no better condition than any other vendee of land, and no question of diligence can arise as between appellee and the . county.
    •J. D. JONES, R. D. DAVIS and A. DUVALL por appellant.
    Appellant stands in the position of an assignor, and no excuse has been given for Pritchard’s delay in issuing execution.
    ■Counties have but one mode of paying their indebtedness, and.that is by allowance to be paid out of the county levy. That allowance was accepted, and appellee’s lien was lost by the acceptance. (Bard v. McElroy, 6 B. Mon., 419.)
    C. B. "WTLHOIT POR APPELLEE.
    The sheriff of Carter county was simply the agent of the county court for the purpose of collecting the county levy and paying county creditors, and to say that the county could buy the Pritchard farm and accept a deed reserving- a lien for purchase money, and then defeat the claim and lien by ordering the agent of the county to pay it, would be to permit a county court to do that which an individual could not do. Appellee’s lien can not be destroyed in this way.
   JUDGE PRYOR

delivered the opinion oe the court.

In this case there is no evidence or pleading presenting a defense to the action. The attempt on the part of the appellee to prosecute his action against the sheriff and his sureties did not release the lien embraced in the deed, and there is no pretense that the money has been paid to the appellee. The proceeding instituted against the sheriff was really for the benefit of the county, as it was the duty of those in charge of the county finances to see that the debt was paid. This claim is unlike the ordinary allowances-, made to county creditors, where the latter can not look to ■ the sheriff and the sureties for payment when a levy has-been made to pay the debt. Here a contract was made with the county, by which the lien was retained, the vendor of the land being unwilling to relinquish his lien until the purchase money was paid. The county is in no better condition than any other vendee of the land could have been, and no question of diligence can arise as between the appellee and the county. He might have dismissed his-action at any time against the sheriff and resorted to his equitable action enforcing the lien, but instead of doing this he prosecuted the action against the sheriff and a part of the sureties until he recovered a judgment and had a return of no property found. That he failed to issue an execution like an ordinary assignee of a note in an action after judgment, did not affect his lien. He acted for the best interest of the county, and did nothing to release the sheriff' and his sureties from responsibility.

The court therefore acted properly in subjecting the land: to the lien of the appellant, and the judgment is affirmed.  