Chandler v. Newell W. Burdett's Adm'rs , 20 Tex. 42 ( 1857 )

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 lifetime. 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. R. 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 a deceased person, and all claims against it, must come under the supervision and control of the County Court. The statute directs the order in which debts shall be paid. Debts secured by a mortgage, or having a lien by judgment, &e., are to be paid out of the proceeds of the property subject to such lien ; but they have no preference over other debts, except with regard to the property so subject; nor are they the debts first in order. These are 1st. Funeral expenses, and those of the last sickness. 2d. The expenses of administration, including the allowances made to the widow and children, and expenses incurred in the preservation, &e., of the estate. Then come the debts secured by lien. If executions were enforced by sale, the whole policy and structure of the rules for the settlement of estates of deceased persons would be deranged. The property might be sacrificed at forced sale, and thus leave perhaps debts of a class superior to judgments, unpaid; and with a certainty that debts of the lower, or fourth class, would be sacrificed. The statute has provided for the payment of judgments. It disregards their lien so far as this may be necessary to secure the payment of the two first classes of liabilities. Beyond this it preserves the lien, to be enforced, however, under process from the County Court. In Robertson v. Paul, 16 Tex. R. 472, it was held that a mortgage with power to sell could not, after the death of the mortgagor, be enforced, except in the mode prescribed by the statute, and that the death of the mortgagor was from the effect of the statute a virtual revocation of the power in the mortgagee to sell. (Boggess & Peck v. Lilly, decided at Austin, 1856.) There was no error in the judgment, and it is ordered that the same be affirmed.

Judgment affirmed.