| Mo. | Oct 15, 1866
delivered the opinion of the court.
This was a proceeding by motion, as authorized by secs. 49 & 50 of the act concerning Executions, R. C. 1855.
The first question that arises in the examination of this case is, whether upon the facts disclosed by the testimony there is any right of action in the officer. If this be determined against him, it will supersede the necessity of looking into any other errors that may be complained of in the trial of the cause.
At the January term, 1865, of the G-reene Circuit Court, the respondent, Thomas A. Reed, then sheriff of that county, presented his motion setting out substantially that in pursuance of a special writ of execution to him directed, and, after giving the notice required by law, he did at the February term, 1864, of said court, expose to public sale certain real estate in the writ mentioned, and that Charles Shepperd the appellant became the purchaser thereof at the price of $1,701; that the said purchaser failed and refused, after demand made upon him, to comply with the terms of the sale by paying the amount of his said bid; and that subsequently, and during the same term of the court, he re-sold the same property, only realizing thereupon the sum of $812, — and asking a judgment against the appellant for the difference between the two bids, amounting to the sum of $ 889. We think it is clear, that the intention of the statute is simply to provide a summary and speedy process for the collection of the amount due upon the execution, and to protect the creditor against any loss that he might sustain by reason of the failure or refusal of the purchaser at the first sale to pay the amount of his bid. It is a remedy, then, to be resorted to only for the benefit and protection of the creditor, and the conduct of the purchaser constitutes the only condition upon which the officer can thus proceed.