Blount v. Traylor

GOLDTHWAITE, J. The matter in question here, is not merely whether the execution is void in consequeuce of having issued after the death of Davis, for as between these parties the validity of the execution cannot be inquired into. [Bettis v. Taylor, 8 Porter, 564.] But considered in another aspect, the fact that Davis died before any lien existed on his goods, is quite decisive of this case. The plaintiff in execution not having sued out his execution in the lifetime of his debtor, has no claim which is entitled to a preference over any other creditor, and as by the administration the title to the decedent’s goods passed to the administrators, to be applied in due course of administration, their claim is necessarily paramount to that derived under the execution. The decision in the case of Collingworth v. Horn, [4 S. & P. 237, 250,] concedes that if that case had shown a case of facts precisely similar to those now before the Court,-that the title of the administrator would prevail against the execution. As the execution has already been quashed, and the levy discharged, there is no reason for remanding the .cause. Let the judgment be reversed. ORMOND, J. By several early decisions of this Court, the claimant on the trial of right of property, was prohibited from •inquiringfinto^the regularity of the judgment, or execution,under which the plaintiff in execution claimed. Following out these decisions, in Bettis v. Taylor, [8 Porter, 564,] we held that the claimant could not object that the execution tjnder [669] which the plaintiff claimed had issued after the death of the defendant in execution. The execution in such a case may, however, be quashed at the instance of any one affected by it, after which it is obvious the plaintiff in execution can no longer proceed, as the levy is discharged by quashing the execution. Such was the fact in this case, and for that cause, if no other existed, the claimant was entitled to a v.erdict.