Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 93
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1875.] YARBOROUGII V. WOOD. 93
Opinion of the court.
and that the instrument sued on il this case was given for
the money bid at the said sale."
The court refused to give any instructions recognizing
that the plaintiff was or might be entitled to the vendor's
lien, and the judgment rendered is simply for the recovery
of the amount found.
It is not proposed to notice all of the errors assigned.
It is evident that the verdict of the jury is for a less
amount than plaintiff was entitled to, allowing defendant
every credit or offset claimed in his pleadings, and even
giving him the benefit of credits not set up in his answer,
and which he was erroneously permitted to prove over the
objection of plaintiff. These errors are each pointed out
in the assignment, and are sufficient to entitle plaintiff to
the new trial which was asked and refused.
We are also of the opinion that, if the instrument sued
on was given in payment for the excess of the purchase
money bid for the land over the amount of cost required
by the sheriff to satisfy the executions under which it
was sold, the fact that the transaction was consummated
through the powers of a sheriff's deed, is not inconsistent
with the existence of the vendor's lien. Counsel for neither
party have cited us to any case in point, nor have we found
any, and in the absence of authority we are left to apply
the principles which we think control the question. The
excess of the amount realized at an execution sale over
what is required to satisfy the executions is the property of
defendant in execution, and, of course, subject to his control.
It is, we think, correctly argued by appellant that
the sheriff, in making the sale, may be regarded as the
agent of the execution creditors to the extent of their
claim, and of the defendant in execution as regards any
surplus. (Crocker on Sheriffs, sees. 407, 471; Ross on
Judicial Sales, sees. 54-56; Cooper's Lessee v. Galbraith,
3 Wash. C. C., 546.)
This principle has been applied so as to recognize that,
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/101/: accessed January 20, 2018), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .