Harwell v. Foster

Simmons, C. J. Claims by third persons to arrest sales are purely the offspring of statute. If there be no statute allowing a claim, none can be filed; the person whose property is advertised for sale must resort to his common-law remedies. The statutes of this State have provided a remedy by claim in those cases only where the sale of the property is authorized by the judgment of a court. In cases of executors and administrators, third persons are allowed t6 claim where the executor or administrator “shall advertise that it is his intention to apply for leave to sell any real estate as the property of his testator, intestate, . . or having obtained such order,” or where he shall “advertise to sell any personal property as the property of his testator, intestate,” etc. The case now under consideration does not fall within any statute of this State authorizing a claim. The executor had the power under the will to sell at private sale without leave from any court, and was proceeding to exercise this power. Section 4630 of the Civil, Code applies only to cases where the executor or administrator is making application to the ordinary for leave to sell, or where such leave has been granted. In this case no application to the ordinary has been made, nor was such application necessary under the law. As the remedy by claim is the creature of statute, and the statute [40] ■doeá'not provide such remedy in cases iike the one now under' ■consideration, no claim could be filed, and the court did not err in'.dismissing the same. Judgment affirmed. All the Justices concurring.