#### Charles Simmons, *vs.*John Simmons.

*X,and was sold by the commissioner, for partition among' parties against whom there were unsatisfied judgments. The commissioner having paid the money to the parties, under the order of the court, was held not liable, on a rule, to the judgment creditors.*

Charles Simmons, senior, died seized and possessed of a ¿ract of land, which upon his death descended to William Simmons, John Simmons and Charles Simmons. Proceedings were instituted by the said heirs or distributees, for partition of the said tract of land; and in February, 1823, the court made the following order.’ “Let the land be sold by the commissioner, on a credit of twelve months, (the parties being all of full age, and desiring it) and the proceeds divided among them.” The ■sale was made accordingly.

It appeared that previously to the institution of the proceedings for partition, there were judgments against William Simmons, which still remained unsatisfied. ' These judgment ■creditors moved that the commissioner should be ordered to pay over William Simmons’ share of the proceeds of the said land to them.

The commissioner shewed cause against the motion, as follows: “The share of William Simmons is *$*129 19 cents. Some time in May, 1823,1 *settled with William*Simmons, and hold his receipt for *$*83 42 cents, in part of his share. On 27th of August, 1823, I accepted and satisfied an order from the said William Simmons, in favor of John Garlington, for .$45 77 cents; which, added to the $ 83 42 cents, makes $ 129 19 cents, his full share. At the time of my thus paying out the share of William Simmons, I had received no direction, *nop*order, nor intimation, from any person whatever, not to do so,, or. to retain, the money to be applied in any other way.”

Chancellor *Desaussure.*

This is a rule on the commissioner, to shew cause why he does not pay over money to persons interested, out of funds m his hands; or rather a motion for an order to oblige him to pay it over. The commissioner makes return, in which he states that he has paid the money in question exactly in conformity to preceding orders of the court. *257This is not deified; but it is alleged that if the'commissioner bad examined, he would have found that there were prior liens, which he oughs to have satisfied, before he made those payments.

It appears to me that as the commissioner has exactly obeyed the orders of the court, it would be improper to make him responsible: at any rate, the court will not, under such circumstances; make him liable in this summary way , If it is believed he is really, liable, the parties must proceed by bill. The motion is dismissed.

The grounds of appeal were,

That the judgment creditors had a lien on the land, before the order for sale made by' this court, and their rights ought not tb be defeated:

That the purchaser of the land will be injured and the land liable to be sold For satisfaction of the judgments against William Simmons.

We think the decree of the circuit court was correct. The commissioner having obeymd the Order of the court, ought to be protected. It is proper that he should respect the legal liens. It is therefore ordered and adjudged that the -decree of the circuit court be affirmed; and that the commissioner pay over the monies according to the orders of the court, after satisfying the legal liens.

*Henry PV. Desausgure, Theodore GaiUard. Thomas Waiies, W. Thompson, William D. James.*