Joost v. Scott

Wheeler, J. If the property had been sold under the execution, it must have been subject to the plaintiff’s lien upon it. The advances, according to the evidence, about equalled the value of the property. But the plaintiff’s claim, as stated in his petition, was for a less sum advanced, The property appearing by the evidence to have been sold, and the proceeds in the hands of the plaintiff, he could have no pretence to retain more than sufficient to cover his demands as stated by himself in his petition. The jury ought to have been instructed to ascertain the value of the property, and the excess should have been awarded to the defendant; and thus complete justice would have been done between the parties. To the end that it may be so done, the judgment must be reversed and the cause remanded. Reversed and remanded.