McMiller v. Anthony Butler's Adm'x

• Decision Date: 01 January 1857
• Citation: 20 Tex. 402
• Parties: JAMES MCMILLER v. ANTHONY BUTLER'S ADMINISTRATRIX.
• Court: Texas Supreme Court

20 Tex. 402

JAMES MCMILLER

v.ANTHONY BUTLER'S ADMINISTRATRIX.

Supreme Court of Texas.

1857.

A sale of land, under execution, made after the death of the defendant in execution, is invalid, although the levy may have been made before such death; and in this case such sale was set aside at the suit of the legal representative of the defendant in execution, commenced nearly five years after the sale, the plaintiff offering to restore the price, with interest. Ante, 42, 126.

It would seem that the levy of an execution on land in a county other than that in which the judgment is rendered, during the lifetime of the defendant in execution, creates a lien which, if not lost by laches, will be enforced in the probate court, under the act of 1848, after the defendant's decease. Hart. Dig. art. 1168. 23 Tex. 539.

Error from Washington. Tried below before the Hon. R. E. B. Baylor.

Suit, March 11th, 1854, by Anthony Butler's administratrix against James McMiller, to recover a tract of 400 acres of land. Defendant claimed the land by purchase at sheriff sale as the property of said Butler; and in case he could not retain the land, he prayed a recovery of the price paid by him for it. The levy was made in March, 1849; Butler died in April; and the land was sold in May. The death of Butler was not known in the county where the sale took place, until after the sale. A jury being waived, and the plaintiff agreeing to repay the price ($500), paid by the defendant for the land, with interest, the court gave judgment for plaintiff for the land, suspending the execution until the payment to defendant of the price paid by him, with interest. The judgment on which the land was sold was in Washington county, and the land in Grimes. This defendant was not a party to said judgment.

Sayles, for plaintiff in error. At common law the sale would be good. Bac. Abr. title EXECUTION. In Conkrite v. Hart, 10 Tex. 140, the levy was not made until after the death of the defendant. That case was governed by the provisions of the act of 1846; this by the act of 1848. By the latter, the common law is expressly applied to the settlement of estates of deceased persons. Hart. Dig. art. 1244.

It might well be said that the rule of common law was inconsistent with the act of 1846, which postponed the payment of all debts of every class for twelve months, and which did not authorize a creditor, having a specific lien, to enforce that lien in any case. But it certainly is not in any way inconsistent with the provisions of the act of 1848, which gives to the creditor with a specific lien, a prompt, sufficient remedy; which authorizes him to proceed at the first term of the court after the death of his debtor to sell the specific property for cash. Why suspend the execution issued and levied in the lifetime of the party, declare it void, and the title of a purchaser, without notice and for a valuable consideration, a nullity, when that identical property could have been sold thirty days afterwards for the same purposes (to pay this identical debt), under the order of the probate court? As a question of policy, the sale should be sustained. This court, by a train of decisions, have settled the law so as to protect purchasers at sheriffs' sales. Here the sale was conducted fairly; the land was duly advertised; it was sold for its full appraised value; the purchase money was paid and applied to the extinguishment of the debt; no creditor or person having a privileged claim is complaining, but the administratrix brings suit after nearly five years. The land is now probably enhanced in value. The statement of the suit and its speculative character would of itself be sufficient to deny her the relief she claims.

J. C. & D. C. Giddings, for defendant in error. If the plaintiffs had a valid levy upon the land in controversy, before the death of the defendant, he had thereby acquired a lien which he could enforce in the probate court, and in no other court or manner. Hart. Dig. art. 1095, 6, 7, 8, 1101, 1168; 1 Tex. 544; 2 Id. 456;10 Id. 140;16 Id. 472.

HEMPHILL, CH. J.

Was the sale, under which the plaintiff in error sets up title, void in consequence of the death of Anthony Butler, the defendant in execution, before the day of sale? This can scarcely be considered an open question in this court. At common law, an execution which had issued prior to the death of the defendant might have been enforced by levy and sale after his death. This proceeded on the theory and fiction, that an execution, when issued, was a perfect thing, with certain functions; and, being complete in itself, could not be superseded by the death of plaintiff or defendant, or of both, but must be performed according to its mandate. Bac. Abr. title EXECUTION; Sellon's Prac. same title; Bennett v. Gamble, 1 Tex. 132, 133;4 How. (U. S.) 75.

This theory has a flimsy show of consistency; but its operation is disastrous to the interests of creditors and heirs. Under the laws of many of the states, debts,...