delivered the opinion of the Court:
Thomas Williams had a claim against one Martin Gibbs, who conveyed- to John Becker a certain tract of land, with power to sell it, and with the proceeds to pay Williams and other creditors. Becker sold the land, but did not pay Williams’ debt, and this action was brought before a justice of the peace, by Williams, against Becker, for the debt due him from Gibbs. This was the statement of the plaintiff’s case, and he recovered a judgment for the amount of his claim.
The cause was taken to the circuit court by appeal, and the same judgment rendered. To reverse this judgment the cause is brought here by appeal. i
We have examined the record, and find nothing in the evidence showing an undertaking on the part of Becker to pay the debt due from Gibbs absolutely. He was only to apply the proceeds of the land in payment of Gibbs’ debts, and as they have been fnlly applied, Becker is not liable to Williams unless he had agreed with Gibbs, on receiving the deed, to pay the debt to Williams as a preferred debt, and had disregarded his trust in the application of the funds.
The case should have been put to the jury on this theory. As it was left to them, the plaintiff should not have recovered. The verdict is against the whole evidence, and -should have been set aside.
The judgment is reversed and the cause remanded.
Judgment reversed.