Emmons v. Williams , 28 Tex. 776 ( 1866 )

Donley, J.

—There is no assignment of errors in this case, nor is any error perceived for which the cause should be reversed.

The sale of the property of the estate of Calvin B. Emmons by the sheriff under execution, it is believed, did not convey to the purchaser any title to the land, and the appellant, as the administrator of the deceased, cannot, by electing to receive the surplus money arising from such sale, after paying the execution under which the land was sold, confirm such a sale, so as to vest in the purchaser a title to the land, and entitle the administrator to the money arising from the sale, after satisfying the execution.

The sale of land by an officer, to vest in the purchaser the title, must be made in pursuance of and in conformity with the law. It is not believed that there is any statute of this State authorizing the real estate of a deceased party to be sold under execution issued against the legal representative of such deceased party. The manner of collecting debts, due from the estates of deceased persons, has been provided by law. (Hartley’s Dig., Art. 1163, 1164;) [Paschal’s Dig., Arts. 1314, 1315, Notes 488 to 490.] From the law cited, it is clear that a creditor might, in a proper case, apply to the court for an order to sell property of an estate for the purpose of paying his debt. But it is believed that the law has not in any case authorized the issuance of an execution against the estate of a deceased party, and a sale of the property of the estate under such execution will not pass the title.

It was held in Conkrite v. Hart, 10 Tex., 140, that a sale made under execution issued in the lifetime of the defendant in execution, the levy and sale being after his death, was void. And it appears that the same rule must apply to an execution issued against the administrator of a deceased party; and that a sale of the decedent’s property under such an execution must be held void, and that the title of the estate to property cannot, by this means, be divested. Such executions and sales have no warrant in law to sustain them.

If the title of the estate of Calvin B. Emmons to the land advertised and sold by the sheriff has not been divested, his representative can have no legal right to any money paid to the sheriff on such void sale. As to the administrator and the estate, the matter remains precisely as if no sale had been made.

Ho error is perceived, and the judgment is

Affirmed.