Conkrite v. Hart & Co.
| Decision Date | 01 January 1853 |
| Citation | 10 Tex. 140 |
| Parties | L. CONKRITE v. HART & CO. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
A sale under execution, issued in the lifetime of the debtor, but levied after his death, is void. (Note 25.)
Error from Colorado. Suit by the appellees against the appellant for one half interest in certain lots and improvements thereon, in the town of La Grange; and for a sale and division of the proceeds. The plaintiff alleged that the property had belonged to John and Lyman Conkrite, and claimed by purchase at sheriff's sale of John Conkrite's interest. The executions, by virtue of which the sale was made, were issued on the 17th May, 1848; John Conkrite died on the 21st of the same month; the executions were levied on the 10th July; and the sale was made on the first Tuesday in August. There was a judgment for the plaintiffs.
Sabin and Potters, for plaintiff in error.
Jones & Ballinger, for defendant in error.
From the view we shall take of this case it will not be necessary to its final disposition that we should notice but one point presented; that is, as to the validity of the sale made under the executions, under which sale the plaintiffs in the district court claim title to an undivided half of the land described in their petition. If the sale was void there is an end to the controversy. The record before us shows that the executions were issued before the death of the defendant in execution, and were levied and the property sold after his death. What was the effect of his death on the executions? Did it abate them, and take from the sheriff all authority for carrying them into execution? At common law it is believed to be well settled, that if the execution is valid at the time it is placed in the hands of the sheriff it is not abated by the death of either plaintiff or defendant; but the sheriff may proceed to make the money.
In the last case cited it may have been understood that the court recognized the common law doctrine as in force, and that it was not affected by our probate law. The case did not make it essential to decide that question; and it can only be taken as an acknowledgment of the common law doctrine, and nothing more. Our opinion, at that time, was not well settled as to the validity of an execution issuing under such circumstances; and the same question was incidentally discussed at Tyler in the case of Coles, administrator, v. _______; but no direct decision had upon it because it was not, in our opinion, necessary in that case. The question as to the manner in which mortgage liens should be enforced against the estate of a deceased person had been discussed and decided in the cases of...
To continue reading
Request your trial
-
Kellogg v. Southwestern Lumber Co. of New Jersey
...is to be settled concurrently with other debts against the estate; this however, can be corrected in this court." See, also, Conkrite v. Hart, 10 Tex. 140; Ansley v. Baker, 14 Tex. 607, 612, 65 Am. Dec. 136; Robertson v. Paul, 16 Tex. 472; Fortson v. Caldwell, 17 Tex. 627; Boggess v. Lilly,......
-
Morgan v. Massillon Engine & Thresher Co.
...construing this article: "A review of the Texas cases shows that the point at issue was first passed upon in the case of Conkrite v. Hart, 10 Tex. 140, and it was held that a sale of land made after the death of a defendant, under an execution issued before his death, was void, and that no ......
-
Porterfield v. Deutsche Bank Nat'l Tr. Co.
...Long v. Castaneda, 475 S.W.2d 578, 584 (Tex. App.-Corpus Christi-Edinburg 1971, writ ref'd n.r.e.) (emphasis added); see also Conkrite, 10 Tex. at 141 enforcement of "judgment liens on the estate of a deceased person") (emphasis added); Cone, 170 S.W.2d at 783 (filing abstract of judgment a......
-
Fleming v. Ball
...death of the defendant, was void. A review of the Texas cases shows that the point at issue was first passed upon in the case of Conkrite v. Hart, 10 Tex. 140, and it was held that a sale of land, made after the death of a defendant, under an execution issued before his death, was void, and......