Hart v. McDade

Citations

• 61 Tex. 208
• 1884 Tex. LEXIS 75

Syllabus

<p>1. Judgment — Execution — Sale.— An execution issued in 1881, under which property was levied on and sold as the property of the judgment debtor, recited the rendition of a judgment on April 13, 1867, in favor of G-. against S. O. and H., “executors of the will” of the judgment debtor, and commanded the sheriff to make the money out of the property of those who were styled executors. Held:</p> <p>(1) The judgment did not support the execution, since it did not refer to that judgment as the authority for its issuance.</p> <p>(3) If the judgment debtor was in fact dead, and the judgment against him had been revived against S. O. and H., as executors of his will, such judgment should have been shown.</p> <p>(3) Even if such revived judgment had been shown, it would not have authorized the issuance of execution against the property of the deceased in the hands of executors, unless it was further shown that this was authorized by the judgment of revivor, or that, under the terms of the will, the executors were authorized to administer the estate free from the control of the probate court.</p> <p>. (4) But if all these things had been shown, the sale of the property of the deceased would have passed no title, for the execution did not direct its seizure or sale, but that of the executors.</p> <p>2. Innocent purchaser.— One who purchases under an execution issued on an original judgment, so old as on its face to be barred, and who, upon inquiry properly directed, would have discovered that the judgment had been discharged in bankruptcy, could acquire no title as against a former purchaser of whose interest he had no actual notice.</p>