"1st. That the plaintiff is entitled to a judgment against the defendant Peter Feeny for the sum of $397.12.

"2d. That said sum is a first lien upon the real estate described in the complaint, and that said land is subject to sale to satisfy said lien.

"3d. That the judgments of the defendants Wade H. Evans and Polly Ann Brown were never a lien upon said real es

tate.

"4th. That the sale by the sheriff to the defendants Evans and Brown, under their judgments against Peter Feeny, passed no title or interest in said real estate to said defendants Evans and Brown, and they have no interest therein at this time.

"5th. That the quitclaim deed by Peter Feeny and wife to the defendant Charles Heshion is, in legal effect, a mortgage, and subject to the prior lien of plaintiff for said purchasemoney and taxes."

The objection to the conclusions of law is, that the finding is not sustained by the evidence. This objection might be urged under the motion for a new trial, but is no reason for sustaining the exception to the conclusions of law. Upon this reason there was no error in the court's overruling the exception.

The fifth alleged error, complained of, is the overruling of appellants' motion for a new trial. And the objections urged against the ruling of the court upon that motion are: That there was no evidence given on the trial that Peter Feeny had no other property subject to execution, and that appellants had notice of the supposed lien of William Feeny. Peter Feeny testified that he was unable to pay appellee's notes. Charles Heshion testified that he had furnished Peter Feeny all that he had had for some time. We think this evidence tended strongly to show that Peter Feeny had no other property subject to execution. And as to notice to appellants of appellee's claim, Evans had made the deed to appellee; it was on record. There was no deed of the land to Peter Feeny

Evans et al. v. Feeny et al.

on record; there was none in existence that appellants could have actual notice of; the record was sufficient notice to appellants that the title was yet in appellee, and they were bound to take notice of whatever interest in, claim to, or lien upon the land appellee might have.

Under the motion for a new trial it is further urged that the introduction in evidence of the deed from Peter Feeny to Charles Heshion was erroneous. This deed had been regularly recorded before the trial, and the original deed, or the record thereof, was competent evidence on the trial.

It is further insisted that error was committed upon the trial by admitting the testimony of Patrick C. Leary. This testimony was in relation to a conversation between witness, Peter Feeny and Charles Heshion, and was while negotiating for the deed from Peter to Heshion, and was in relation thereto, and, as a part of the transaction, was admissible testimony.

The evidence supported the finding, and the finding is not contrary to law. There was no error in overruling the motion for a new trial.

It is further insisted that the judgment is not in the proper form. There was no motion made in the court below to change or modify the form of the judgment, or any exception taken to its rendition. This question can not be raised for the first time in this court; it is waived by not having been presented to the court below.

We see no available error in this record. The judgment below ought to be affirmed.

PER CURIAM.-It is therefore ordered, upon the foregoing opinion, that the judgment below be, and the same is, in all things affirmed, with costs.

ON PETITION FOR A REHEARING.

FRANKLIN, C.-Appellants, in their petition for a rehearing, insist that the court erred in holding that the judgments of Evans and Brown were not liens upon the real estate in

Evans et al. v. Feeny et al.

controversy, and that it could not be sold under executions upon said judgments.

William Feeny held the legal title to secure the payment. of the balance of the purchase-money, and was ready and willing to convey whenever that was paid. There had been no fraudulent conveyance from Peter Feeny, and none had been made by William to any third party, nor did he hold the title in trust for Peter. The conveyance by Peter of his interest in the land to Heshion was to secure a good-faith indebtedness. William Feeny held the legal title as a mortgage, and Heshion held his conveyance as a second mortgage. There was no fraud shown to exist in the transaction. And, under such circumstances, the judgments of Evans and Brown against Peter created no lien upon the land, and it was not subject to sale under executions issued upon said judgments, without first applying to a court of equity and making Peter Feeny's interest in the land subject to the payment of said judgments. Modisett v. Johnson, 2 Blackf. 431; Gentry v. Allison, 20 Ind. 481; Jeffries v. Sherburn, 21 Ind. 112; Terrell v. Prestel, 68 Ind. 86; Howe v. Bishop, 3 Met. 26; Williams v. Council, 4 Jones (Law) 206; Bauskett v. Holsonback, 2 Rich. (S.C.) 624; Doe v. McKinney, 5 Ala. 719; Wilson v. Beard, 19 Ala. 629; Smith v. Hinson, 4 Heisk. 250; Low v. Marco, 53. Me. 45; Webster v. Folsom, 58 Me. 230; Freeman Executions, sec. 136, and authorities therein referred to.

In the case at bar, we think there was no error in holding that the said judgments were not liens upon the land, and that no title passed to appellees by the sale of the land. The petition for a rehearing ought to be overruled.

PER CURIAM. It is therefore ordered, upon the foregoing opinion, that the petition for a rehearing be and the same is overruled, at appellants' costs.

State, ex rel. Hazlerigg et al., v. Early, Sheriff, et al.

No. 7756.

.STATE, EX REL. HAZLERIGG ET AL., v. EARLY, SHERIFF, ET AL.

PLEADING.-Payment.--Sheriff's Sale.-Action on Sheriff's Bond.-A plea of payment is a relevant and proper defence to an action against a sheriff to recover a surplus remaining in his hands from the proceeds of a sale of property on an execution against the plaintiff; and it is error to give judgment for the plaintiff as for a failure of the defendant to answer, when such plea is on file.

SAME.-A plea of payment need not state to whom the payment was made. SHERIFF.-Payment to Clerk of Court.-Ratification.-To an action against the sheriff for the recovery of an alleged surplus remaining in his hands from the sale of plaintiff's property on execution, it is a good defence that the sheriff had paid the money to the clerk of the court, to whom the attorneys of record of the plaintiff, "thereunto duly authorized," had receipted for parts of the money, and the remainder, with the plaintiff's consent, had been applied by the clerk to costs taxed against the plaintiff; such facts show a ratification of the act of the sheriff in the disposition of the surplus.

PRINCIPAL AND AGENT.--Ratification.--The unauthorized act of an agent, or of one assuming to act as an agent, can not be accepted in part and rejected in part.

From the Jackson Circuit Court.

D. Overmyer, for appellants.

WOODS, J.-Complaint against a sheriff and his bondsmen, charging in substance, that the sheriff, by virtue of a decree of foreclosure, had sold certain real estate of the relatrix, and after satisfying the decree and costs, had remaining in his hands of the proceeds of the sale a surplus, which, on demand, he had failed and refused to pay over to the relatrix.

The defendants joined in an answer of three paragraphs, to the first and third of which the plaintiff demurred. The court sustained the demurrer to the third paragraph, and overruled that to the first, to which the plaintiff excepted; whereupon, according to the recital of the record, "the plaintiff failing and declining to reply, judgment was "awarded the defendants on the first paragraph of the answer."

The second paragraph of answer, which is a plea of

pay

State, ex rel. Hazlerigg et al., v. Early, Sheriff, et al.

ment, seems to have been overlooked or ignored; and counsel for the appellant now insists that that plea is not good, and that, if otherwise good, it was irrelevant and should be disregarded by this court, as it was by the court below.

It is not necessary that a plea of payment allege to whom payment was made. Demuth v. Daggy, 26 Ind. 341.

And we perceive no force in the other suggestion of counsel that the relation of debtor and creditor did not exist between the sheriff and the relatrix in respect to the money sued for, and hence that the plea of payment is irrelevant and inapplicable. When an officer or private individual, who has become accountable to another for money, is sued for not accounting for, or for failing to pay or turn over, the money to the one entitled thereto, the plea of payment is necessarily pertinent, and, if interposed, should not be disregarded. Upon this plea, therefore, irrespective of the first, upon the failure and refusal of the plaintiff to reply to it, the defendants were entitled to judgment.

We are of opinion, moreover, that the first paragraph of the answer, on which the court based its judgment, is also good. It shows that the sheriff turned over the surplus in question to the clerk of the court for the use of the relators, and "that the attorneys of record of said Catharine Hazlerigg and of and for both said Catharine and William Hazlerigg, thereunto duly authorized, collected and received from the clerk of said court for the relators and for said Catharine, of said moneys, as follows: William K. Marshall and Jason B. Brown received each the sum of $130.50, and William W. Herod received $130.50, and the remainder, to wit, $35.80, was retained by consent of the relators and applied by said clerk on costs in said court, for which said Catharine and her property were liable."

We do not agree with counsel that the phrase, "thereunto duly authorized," imports no other authority than that which came from the said attorneys having been the attorneys of record of the relators in the foreclosure suit. We think it a