Huston v. Duncan

JUDGE ROBERTSON delivered the opinion of the court. The opinion hitherto pronounced on the same record, on the appeal as between Holeman's ex'or vs. Holeman's heirs, rules this case dependent on the same facts and principles; and still satisfied with that judgment, we will only add, in support of its principle, the following-reason, peculiarly applicable to land. While the levy on movable property puts the thing in the officer’s possession, either actually or constructively, and, consequently, invests him with a special property, a levy on land gives him no such possession, and, consequently, no such title. The death of the owner of the land after the levy, and before a sale, passes the whole title to his heirs, and, without a revivor against them, there is no title subject to sale by the levying officer, who could not, if he sell, pass any title to the purchaser. Such a sale, therefore, must be void. The judgment recognizing the validity of the' sale as between the parties to this appeal is therefore reversed, and the cause remanded for further proceedings, as indicated in the opinion just referred to, between other parties in the same case. Note by Reporter. — See case of Holeman’s ex’r vs. Holeman’s heirs, post.