Chandler v. Newell W. Burdett's Adm'rs

• Decision Date: 01 January 1857
• Parties: FREDERICK W. CHANDLER v. NEWELL W. BURDETT'S ADM'RS.
• Court: Texas Supreme Court

20 Tex. 42

FREDERICK W. CHANDLER

v.NEWELL W. BURDETT'S ADM'RS.

Supreme Court of Texas.

1857.

Motion for venditioni exponas to sell real estate levied on during the life-time of the defendant in execution since deceased, refused on the ground that upon the death of the defendant in execution, his property, and all claims against him, passed under the supervision of the county court. Administration had been opened.

See this case as to priority of claims against estates of deceased persons. Post, 126, 402; 10 Tex. 140;16 Tex. 472;18 Tex. 200;21 Tex. 154;22 Tex. 537;24 Tex. 468;27 Tex. 80;28 Tex. 776;18 Tex. 200.

Error from Travis. Tried below before the Hon. Thomas H. DuVal.

The levy was on land in the county of Travis, and the lien of the judgment was still subsisting. Letters of administration had been issued on the estate of Newell W. Burdett, the defendant in execution; and the administrators had notice of the motion for a venditioni exponas.Chandler & Turner, for plaintiff in error. The court below refused the motion upon the ground that the remedy was alone in the county court. The effect of such a rule would be to divest a court of superior jurisdiction of a matter over which it had acquired jurisdiction, and vest the same in a court of inferior jurisdiction; which is at war with the longestablished rules upon this subject and against the ruling of this court. See Bennett v. Gamble, 1 Tex. 124;8 Id. 451. The last case in principle covers the ground, as we believe. The lien of the plaintiff is of such a character that the county court would be bound to prefer it over all others. Then why the reason to make a bill of costs in that court, in order to obtain the same ends to which the district court could arrive by the means asked by plaintiff?

Hancock & West, for defendants in error. By the death of Burdett before a sale, the execution, under our system, lost its efficacy. Conkrite v. Hart, 10 Tex. 140. Before the application for a vendi was made the jurisdiction of the probate court had attached. The judgment was a lien, and as such is specially provided for in the law. The law was meant for just such cases. Hart. Dig. arts. 1168, 1187. This doctrine has been held by the supreme court in two cases; a contrary doctrine would be subversive of our statute. Robertson v. Paul, 16 Tex. 472; Boggess & Peck v. Lilly, Austin, 1856.

HEMPHILL, CH. J.

The object of this proceeding is to enforce, by order of venditioni exponas, an execution which had been levied upon the property of N. W. Burdett in his life-time. The question is: What was the effect of his death before sale? Could the execution be enforced after his death, as at common law? Or must application be made to the county court for an order to sell the property levied upon?

This question was decided in Conkrite v. Hart & Co., 10 Tex. 140, with reference to the probate law of 1846; and if, under that law, it was held that an execution abated by the death of the defendant, and that a sale on the execution after his death was void and conveyed no title, much more clearly and positively is this the law under the statute of 1848. From the provisions, and general scope of the statute, it is very apparent that the whole of the estate of...