¶1The facts in this case are peculiar. The appellee recovered a judgment as the administrator of O’Connell’s estate, against W. J. Thompson as principal, Thomas Adams, John T. Craves, and Earnest Eaven, as securities. The court ordered the sale of lots one and four in block forty-four, in the city of Austin, previously mortgaged by Thompson to secure the debt on which judgment was rendered.
¶2Hnder this order of sale, which did not run against the property of Graves, the appellant, as Sheriff of Travis county, not only sold the mortgaged premises, but also attempted to sell several other' city lots, the property of Graves, which lots were bid in by Adams, and it was claimed that the purchase-money was paid by Adams to the appellant.
¶3There does not appear to be any controversy about the purchase-money for the mortgaged premises.
¶4The sale of Graves’s property was void, as the sheriff had no process on which to make it, but, the sheriff, Adams, and Gray, who was the attorney of record, all appear to have acted under some mistake as to the condition in which the void sale placed both the property and the money arising from it. *11The sale was a nullity. Adams was not bound to pay the purchase-money, nor had the appellee or his attorney any right to claim the money from the sheriff, if the purchaser saw fit to pay it over.
¶5From some misunderstanding, probably of the law, but perhaps with the view of securing Adams in the money which he had paid, Gray, as the attorney of record of Philips, attempted to transfer the judgment to Adams. Adams, having paid the money to the sheriff, about four hundred and seventy dollars, the sheriff appears to have passed the money into the hands of Gray, and up to this time it does not appear to be denied that Gray was the attorney of record for Philips. But Philips could lay no claim to this money; it had not come legally to the hands of the sheriff, nor could it have come legally into the hands of Gray, as a consideration for the transfer of the judgment, for he, as the attorney of record, was not authorized to sell the judgment.
¶6The property appears to have been subsequently sold by the appellant on a valid execution. Adams again became the purchaser, and by the mutual understanding of parties, the sheriff appears to have made a deed in consideration of the money previously paid to Gray. In this he evidently mistook his duty under the law; he should have insisted upon the payment of the purchase -money under the valid sale.
¶7But had Gray continued to be the attorney of record of Philips until the valid sale was made, the law would have charged him with the money as trustee or attorney of Philips. But the evidence in the ease establishes the fact, that before any valid sale of the Graves lots was made, Philips had notified the sheriff that Gray was no longer his attorney, and desired that no money should be paid into his hands. If the sheriff had paid the money to Gray subsequent to this notice, such payment would not have discharged him from liability to the judgment creditor.
¶8Eeasoning thus upon the law, we are irresistibly led to the conclusion that the appellant is liable to the appellee for the *12money made upon the execution, and legal interest upon the same until it shall be paid. . •
¶9But we are compelled to differ with his honor the district judge upon the question of “penalties. We do not think it clear that a demand was made upon the appellant for this money, before the commencement of suit. It is true, the evidence of the witness Perry is to the effect that- the appellant was notified that the appellee would look to him for the money; but this was not a present demand for the money.
¶10The ten per cent, per month penalty, fixed by our statute, is only recoverable where there is such culpability or negligence as shows a wantonness or dishonest motive in withholding a payment, and we do not think the evidence in this case entitled the appellee to such a recovery.
¶11The judgment of this court will therefore be (a jury having been waived below) that the appellee recover of the appellant the amount found due by the district judge, with legal interest, without penalty.
¶12In this very complicated matter, we should perhaps do less than our whole duty without saying that, if the money was paid by Adams to Gray, in consideration of the transfer of Philips’s judgment against Thompson and others, and was a matter not expressly sanctioned by Platt, such payment could not satisfy the purchase-money at the valid sale of the property, and the loss of the money, Gray having failed to account for it, might properly fall upon Adams, were that question made between him and Platt; but upon the facts before us in this record, we can have no doubt of the liability of the appellant, as already indicated in this opinion.
¶13Reformed and rendered.