Swift v. Estate of Kennison , 39 Vt. 473 ( 1867 )

The opinion of the court was delivered by

Steele, J.

Sargent, the execution creditor of Peter M. Swift, levied upon the share in the land, to which, as one of the heirs, Swift was entitled. The levy, if valid, ultimately gave Sargent all the title Swift had. Until the period of redemption expired, the levy was a lien or incumbrance upon Swift’s interest in the land. It is very true that the right to sell a part or the whole of the land, if necessary in order to satisfy the debts of the intestate or the costs of adm nistration, was paramount to the right of either Swift or Sargent. But the land was not needed or resorted to for any such purpose. It stands conceded that the sale, by license from the probate court, was based solely upon the application and consent of the'heirs subsequent to the levy. Swift could not, by his consent, alienate Sargent’s property or prejudice Sargent’s lien. The sale of Swift’s share in the land not being for the purposes of administration, but upon his own application and consent as an heir, is substantially his own act. Whatever Swift did with the land after the levy is subject to the levy. The sale standing upon Swift’s consent and not Sargent’s transfers Swift’s interest and not Sargent’s. As Sargent’s rights are not passed nor prejudiced by the sale, he has no interest in the avails of the sale and is not entitled to be heard on the question of their distribution.

The pro forma judgment dismissing the appeal is affirmed, and may be certified to the probate court.