Hoxie v. Kennedy ( 1888 )

Angle, J.

This motion is made under section 1823, Code Civil Eroe., which provides that “real property which belonged to a decedent is not bound,, or in any way affected, by a judgment against his executor or administrator, and is not liable to be sold by virtue of an execution issued upon such judgment, unless the judgment is expressly made by its terms a lien upon specific real property therein described, or expressly directs the sale thereof.” ■ The above section of the Code is copied from 2 Rev. St. 449, § 12, except that the above underscored or italicized words are added. The object of this addition, as said by Mr. Throop in his note to this section of the Code, was to avoid the possibility of the application of the provision, as it stood in the Revised Statutes, to an equitable judgment affecting particular real property. Ho other sensible construction can be given to the Code. The motion must be denied, with $10 costs.