414 liAbES IN TBE Su_eti.EME COV ET Davis vs: Oswalt, ex, January DAVIS VS. OSWALT, EL By the common law a fieri Meths bad relation to its teste, though in fact issued subsequently, and bound the goods of the defendant from that date!. consequently, if tested before the death of the defendant, it could be taken out afterwards, and executed against his goods and chattels regardless of his death. By our statute (Di o.: ch: li7, sec, 27,) the lien of an execution, upon "nods, etc.,!,commences at the time the writ comes to the hands of the of freer , t , o . he executed, where the judgment or decree does not constitute a lien upon the property. But such is the effect of our probate statutes, that although a fi fa u,urat, to the hands of the sheriff, before the death of the defendant, , and thereby becomes a general lien upon all his personal property, yet the death of the defendant, before the officer makes a levy and seize.s the property into his custody, suspends the execution of the process_ ( State plink vs. Etter, 15 Ark. 27'1) But if the execution be levied upon the goods of the defendant therein before his death, the Officer may sell them after his death to satisfy the execution, (14 Ark, R. 57.) And so, where by decree of a Court of equity, certain property is condemned , to be sold in satisfaction of a debt due from the defendant, and an execution or order of sale commanding the officer to sell that particular prop-eity, culne to his hands before the death of the defendant, the subsequent ! death will -not prevent the seizure and sale of the property Appeal' from the Circuit Court of Phillips county in Chancery. The Hon. GEORGE W. BEAZLEY, Circuit Judge. .Watkins & Gallagher, and Palmer for the appellant. By the common law, and in those States where the common law is in force and not changed by statute, "The lien of an execution bears date from the teste of the writ, and although an execution is not, in reality, issued until after the death of the defendant, yet if it is issued and properly tested, as of a day previous to the death of the defendant, it is presumed to have been issued on the day of its teste, and by relation dates from that day, and by relation it can be executed by levy upon the
OF THE STATE OF ARKANSAS. 415 Telat, 1557. Davis vs: Oswalt, ex, personal property of the defendant, and the same sold to satisfy the execution without reviving against the personal representatives: In those States where, by statute, the lien of the execution dates from the time the execution is put in the hands of the sheriff, if the execution comes to the hands of the sheriff or other offieer, prior to the death of the defendant, the lien commences from that time, and the subsequent death of the party cannot affect that lien, but the execution can be executed by levy upon the personal property of the deceased, and the same sold to satisfy the execution without reviving the judgment against the personal representative. Fleetwood's Case 8 Co. 171; Audley vs. Halsey Cro. 148; Erwin's Lessee vs. Dundas et al. 4 How. S. e. R. 75 ; Fox vs. Lamar, 2 Bre. 417; Fryer vs. Denio, 3 Ala. 254 ; Coperton vs. Martin 5 Ala. 217; Boyd vs. Denio, 6 Ala. 55; Colingsworth vs. How, 4 Stew. & Port. 237; Hielman vs. Halst, ib. 280 ; Harrison vs. Banier, 2 Gill & John. 359; Newellen vs. Biles, 1 Dana 419. Tinder the statute ( Dig. sec. 27, p. 498,) an execution becomes a lien upon the personal property of defendant and the real estate to which the judgment lien does not extend, from the time the writ is delivered to the officer in the proper county to be executed. The statutes relating to administration of estates do not interfere, in any manner, with the common law rules on this subject ; and whenever the execution is placed in the officer's hguds the hen commences, by presumption of law the ex-,:eution thereof is eninineneed„ind it being an entirety must be consimunated. The case at bar presents a much stronger ease. Here the decree rendered, created a specific eharge upon the identical property levied on, and the writ was ordered to issue against that particular property—being in the nature of a sequestration, and thereby specifically appropriating that to the payment of the particular debt, and in no event could it go to the exeeutor as part of the general assets of the estate.
416 CASES IN THE SUPREME COURT Davis vs. Oswalt, ex, January Mr. Chief Justice ENGLISH delivered the opinion of the Court. This was a petition to quash an execution, etc., determined on the chancery side of the Circuit Court of Phillips county, at the November term, 1855. The petition was filed by Wm. T. Oswalt as executor of Levisa Dobbins, deceased, statino . , substantially, the following facts : On the 8th of September, 1855, George Davis recovered, in said Court, a decree against Levisa Dobbins and her husband, Wilson D. Dobbins, for $1,242, with interest from 24th Nov'r, 1853, and costs. By the terms of the decree it was ordered, adjudged and decreed by the Court, that the amount thereof should be made out of, and from the sale of certain slaves, whose names, ages, etc., are stated. On the 23d of Sept., 1855, by direction of Davis, the clerk is sued an order of bilk, or execution on the decree, to the sheriff of said county, commanding him, that of the slaves aforesaid he cause to be made the debt, interest and costs, etc., returnable to the November term following: which came to the hands of the sheriff on the 26th of Sept., 1855. On the 29th of October, following, the sheriff levied the process upon all the slaves named therein, and advertised them for sale. etc. On the 18th of October, 1855, after the order of sale came into the hands of the sheriff, and before he levied on the slaves Le% isa Dobbins departed this life, haiing made a will devisirp, all her property to persons therein named, and appointing petitioner her executor. On the 23€1 of the same month, the will was duly probated, and letters gTanted to petitioner by the Probate court of Phillips county The slaves afoversaid were the separate property of Mrs. Dob-bins, secured to her by a marriage contract entered into between her and Wilson D. Dobbins prior to their marriage. He, though a party to 'the decree, had no interest in the slaves, except the use of them during the lifetime of his wife, Mrs. Dob-bins ; and by her death his interest terminated. By the laws of the State, she, being the sole owner of the slaves, had, under said marriage contract, full power to make a will, and devise
OF 1HE STATE OF Al1KANSS -I I 7 Term, 1857: Davis vs: Oswalt, ex. them; ond by the provisions of the will the property therein vested in the petitioner as executor, etc. Petitioner submits that inasmuch as the ordor of solo, eer exe-tuition, was not executed hefore tho death of Mrti. Dobbins, thy levy made hy the sheriff upon the slaves after her death, was void, and that he could not sell them under the process. That the decree, to be effectual as against Mis. Dobbins, should be revived against petitioner as her exeentoi, or certified to the Probate Comt, and allowed and classed there as other claims against her estate. But the sheriff, under the di.-ection of Dovis would proceed to sell the slaves uuder the order of sale, etc., unless restrained, etc Prayer that the process, or the levy thereof upon the slaves, he quashed, otc, The order of sale, will of Mrs. Dobbins, etc,, mai I rage contract, etc., are exhibited. The Court, upon the final hearing of the petition, gnashed thin levy endorsed by the sheriff on the order of sale or execbtion, and ordered the slaves to be restored to the pos,wesitin ■It wale, as executor of Mrs DoUins, etc Davis appealed to this Court. By the common law. q fieri /acierchail -rob firm t•-■its 'este. though in fact issned s y lbs. eqnontly, and hound the goods of the. defendant from that date. Consequently, if tested before the death of the defendant, it could be taken out afterwards, arid e7,:ecuted against his goods and chattels iegardless of his death'. The theory or fiction, upon which this result was arrived at. was, that the execution was taken in judgment of law, to have been issued at the time it bears date, however the filet may have been, and that being prior to the death of the defendant, and the goods being bound_ from the tcste, or presumed issuing, execution upon them was deemed to have commenced in the lifetime of tbe party, and being an entire thing, miabt be completed notwithstanding his death. Erwin's Lessee vs. Dimdas • et al., 4 How. LT. S R. 75. Speer vs. Sample, 4 Watts :169. Fleet-wood's Case, S Coke 171. Ev our statute: “No execluiop -shall be a lien on the property in any slaves, froods or chattels, or , rigiits or shares in any
415 CA:SES IN 'HIE SUPREME COUR r Davis vs Oswalt PX January stock, or any real estate, to which the lien of the judgment, order or decree does not extend, or has been determinated, but from the thee such writ shall be delivered to the officer in the proper county to be executed." Dig. ch. 67, see. 27. The effect of tins statute was to repeal so much of the onl-mon law rule as made the lien of an execution upon goods, etc:, extend back by relation to its tcste, when issued subsequently: and to fix the commencement elf the lien at the time the writ comes to the hands of the officer to be executed, where the judgment or decree does not constitute a lien upon the property. So far as this statute is concerned, there is no good reason an execution coming to the hands of the sheriff in the lifetime of the defendant, might not be levied arid enforced against his persoeal propei ty a f his death, without a revival of the judgment against his executor or administrator: This would bc consistent -with so much of the common law rule as stands un-charigè d by this sta tu te. See Cedlougsworth vs Horn, 4 Stewar t & Porter 237. Fryer ad. vs Dennis, 3 Ala E. 254. Caperton vs. Martin, 5 Ala. 217. Boyd ad: vs. Dennis, 6 lb. 55 Aber-et web Hall, Ill, 6:57. Hanson vs. Barne's Lessee 3 Gill & John. 3511. Centel vs. Billingsgate, 1 Cowen 34. Styments vs: Brooks, 10 Wend. 206. But we thiuk that such is the effect of out probate statutes upon the common law rule, that although a fi. fa. comes to the hands Gf the sheriff before the death of the defendant, and thereby becomes a general lien upon all his personal property yet, inasmoeh as it does not become a specific lien upon any particular propert, until the officer makes a levy and seizes the property into his custod y , the death of the defendaut suspends the execution of the process, and it is not leg-I:liar for the officer to make a levy and sell the property after his death. The Stab Bank vs: Etter, 15 Ark. H272, Lessee of Massie's Heirs vs, Long et al:, 2 Ohio 290. Sweringen vs Adr_ of Eherius, 7 Mo: 4n: Conkiite vs: Hart, 10 Texas 140: If, therefore, the execution in the case befro e us had been a fi. fa. against the goods and chattels, ete generally of Mrs: Dobbins. we should not hesitate to hold that the Court below
OF THE STATE OF AL:KANSAS. 419 Terni,1857. Davis vs: Oswalt, ex: committed no error in quashing the levy made by the sheriff upon her slaves after her death, and directing the property to be restored to her e-‘eentor to be administered accordin' to law for the benefit of all her creditors, etc: Bat in this eilSC the decree, it seems, was a specific lien llpon particular slaves named therein, which were condemned, by the terms of the decree:to be sold, as the separate property of Mrs. Dobbins, for the satisfaction of the dcht adjiidgpil against her and her husband by till = deorce, ks to the slaves, i t Was a dePree in rem, they being, as we must suppose, within the turis-diction, and mader the control of the Court when the decree was made. The execution was a special one, directing the ,sheliff to sell the particular slaves condemned to be sold by the decree, The decree was made, and the execution issued and placed in the hand§ of the sheriff before the death elf :Mrs: Dobbins. The lien thereby created would not have bi, eut made more specifie than it was, if the execution had been levied upon the slaves before her death. After the assignment of the widow's dower, the estate of a deceased person is subject to the payment of his debts in the order prescribed by the statute. 'Dig: eh. 4, see. S. It may be seen that this statute gives no preference to a debt which con-. ititutes a specific lien upon the personal property of the deceased. Yet it is well settled that if an la-went:inn hp lpvipd OP the goods nf the defendant therein before his death, the officer may sell them after his death to satisfy the execution. The reason of this is, that by the levy and seizure, the officer acquires a special property in the goods, which ale thereby detached from the general estate of the debtor, and do not constitute a part thereof for the purposes of administration in the event of his death after the levy, nnless the debt is paid, and the property released liv his r p preqp niativns Arnett vs. Arnett et al, 14 AA' H. 7. Ipssee of Massie's heirs vs. Lnig, 2 Ohio 290. Mundy's aril!. vs. Bryan, 18 Mo. ( 'I Bennett) 29: Grosve-nor vs. Gold 9 Mass, 209: 10 Yerg. 32ft In the State Bank vs. Etter, nhi sup., this Caurt intimated the opinion that even real estate might be sold after the death of
420 CASES IN THE SUPREME COURT Davis vs: Oswalt, ex, January the defendant, if the executionw a6 levied before his death, without reviving the judgment against his heirs, administrators, etc , and without probating it, if the sale was made under the execution in the hands of the sheriff at the time of the levy, etc. As above remarked, the lien of the decree and order of sale in the hands of the sheriff, upon the slaves in this case, was as specific as if a levy had been, made before the death of Mrs: Dobbins. The creditor had acquired, during her life, a vested right to have his decree satisfied out of the particalai piupeity named therein, in preference to he'r creditors generally, and her death did not divest this right Her executor could have no claim upon these slaves for the payment of other debts, or lega-ties, until this decree was satisfied. And the process of execution ha j ug volumenced in lier life, and being, according to the common law theor y , an entite thing, there can be no 'good reason wh it may not have been completed after her death. The judgment of the Court below is reversed, etc. Mr. Jiitiee not sitting ni this case. MI=
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.