
    *Den ex dem. John and Lambert Rickey against James Hillman.
    IN EJECTMENT.
    1. A vested remainder in fee may be taken in execution and sold by virtue of an execution against the remainder man.
    2. If an execution be tested in the defendant’s lifetime, it may be taken out and executed after his death.
    3. An administrator, being a trustee merely of the personal fund, is not disqualified thereby from bidding for the landed estate, he not being the person intrusted to sell it.
    This cause being noticed for trial at the Hunterdon Circuit, at October term, 1820, the defendant confessed lease entry and ouster, (pro ut lex postulat.) the parties agreed to the following state of the case :
    John Rickey, being seized of the premises in question,-by his last will and testament; executed in due form of law, bearing date the 11th March, 1794, devised the same as follows : “ I give to Mary, my wife, the house and lot where I now live, together with the remainder of my personal estate, (my bonds, bills, and book debts excepted) for and during her natural life; and at and after her death, I give the same to my son Randal Rickey, and unto his heirs and assigns for ever, under this express condition, that he bring no account against my estate;” and died, so seized, on the 8th September, 1798 : and the said will was afterwards duly proved and recorded.
    Mary Rickey, the devisee for life, upon the death of the said John Rickey, entered upon the premises in question, and remained in possession until her death, in the year 1813, and the said Randal Rickey also lived on the said premises until his death.
    On the 4th September, 1802, judgment was entered in the Court of Common Pleas of the county of Hunterdon against the said Randal Rickey, at the suit of Robert Coe and son, for $191.47 debt, and $46.90, costs of suit (pro ut judgment)
    
      On tlie 1st December, 1802, the attorney of plaintiff drew an execution, issued on said judgment, and sent the same to the clerk of the county of Hunterdon, to be recorded and delivered to the sheriff' of the county of Hunterdon. This execution directed the sheriff to levy $95.75, debt, with interest Jrom 18th November, 1802, and the costs of suit, and was, on the 18th December, 1802, delivered to John Phillips, Esq., sheriff of the *county of Hunterdon, to be executed, and was levied by him on the premises in question (pro ut execution and return.)
    On the 3d December, 1802, the said Randal died intestate, leaving a widow, possessed of certain goods and chattels, and entitled to the money due on the notes and book accounts in the inventory hereunto annexed and specified, appraised at £307 8s. 11 d. (pro ut inventory).
    On the 31st December, 1802, administration of the estate of Randal Rickey was granted to Benjamin Hornor, who took on himself the burden of the administration, and filed the inventory before mentioned, and took possession of the goods and chattels therein specified, which still remained on the premises in question, except the store goods, and sold the same at public vendue, and collected such of the money due on the said notes and book accounts as were collectable, and settled his accounts, as administrator, on the 25th June, 1805, (pro ut settlement.)
    John Philips, Esq., advertised, and in due form of law sold the premises in question, by virtue of the foregoing execution, on the 10th May, 1803, to the said administrator, Benjamin Hornor, David Chambers and Alexander Chambers, they being the highest bidders, for $340, and on the 30th January, 1807, made a deed of conveyance to them (pro ut the same).
    Benjamin ITornor, Juu., the administrator, received, in the course of his administration, goods and chattels, and collected debts of the estate of Randal Rickey, deceased, to more than the amount of the foregoing judgment and execution, after paying the physician’s bill, in his last sickness, and funeral expenses, but not sufficient, including the balance of the said sale of the said house and lot, over and above the payment of the' before mentioned execution, to pay off and discharge the judgment herein after next mentioned, and other judgments entered of record against the said Randal Rickey, in his lifetime.
    Benjamin Hornor, Jun., obtained judgment of the Inferior Court of Common Pleas of the county of Burlington, against the said Randal Rickey, signed 2d November, 1801, as of August term, 1801, for $2,265 debt, and $11.90 costs, which judgment remained unsatisfied, in part, at the death of the said Randal Rickey, and still remains in part, unsatisfied.
    July 12th, 1802, James Hutton obtained, before'James Ewing, Esq., one of the justices of Hunterdon county, a judgment *against Randal Rickey, aforesaid, for $60.91 of debt, which judgment stll remains unsatisfied.
    March 17th, 1810, David Chambers, by'deed, conveyed one-third part of the house and lot in question to Alexander Chambers, who, on the 8th November, 1811, conveyed the same to David C. Olaypooie.
    The said Benjamin Hornor, Jun., is dead, leaving children, infants, to whom his third descended. — James Hillman, the defendant, at the commencement of this action, was in possession of the premises in question, as tenant under Alexander Chambers, David C. Olaypooie, and the children of .Benjamin Hornor. — The lessors of the plaintiff are the only children and heirs at law of the said Randal Rickey, deceased.
    If, upon the foregoing. state of facts, the court should be of opinion, that the plaintiff is entitled to recover, then judgment be entered for the plaintiff, with six cents damages, and six cents costs, otherwise judgment be entered for the defendant, with costs.
    
      Wall contended
    1. That Randal Rickey was not seized of such an estate in the premises in question as could be taken and sold, by virtue of an execution, in the lifetime of the widow. The estate of Randal Rickey was only an estate in remainder, which could not vest in possession until the death of the widow. The statute making lands liable for the payment of debts {Rev. Laws 431, see. 6) enacts, “That if sufficient goods and chattels of the said party cannot be found in his county, that then the sheriff shall cause the whole, or the residue, as the case may require, of the said debt, damages and costs or sum of money to be made of the lands, tenements, hereditaments and real estate, whereof the said party was seized on the day when the said lands, &c., became liable to such debt,” &c. The question is, what kind of seizin is meant ? Is it a seizin in deed or a seizin in law ? The word seized, as here used, meant possessed, not merely entitled to, but an actual pernancy of the profits. The whole object of the legislature was to sell the property of which the defendant was in the actual possession, the property of which he was seized in deed, and not that in which he had merely a prospective estate, which might or might not come into possession during his life. If any other construction was given '"Ho this act, the interest of the remainder man must in all cases be sacrificed, for it would seldom bring any thing at sheriff’s sale.
    2. That the execution reaching the hands of the sheriff fifteen days after Randal Rickey’s death, was altogether void, and furnished no authority for the sheriff to proceed and sell the property. Randal Rickey died on the 3d of December, 1802. On the first day of the same mouth, the attorney drew the execution, and sent it to the clerk to be sealed. On the 18th of the same month it reached the sheriff. The defendant was then dead, and other persons had become entitled to the premises. There are cases which decide, that an execution issued after the death of the defendant binds from the teste of the writ. But this principle does not apply to real estate, for if any difficulty arises as to writ priority, if is determined by ascertaining the time when the sheriff received it. In this case, the day on which the writ was sealed is unknown — when it reached the clerk’s office does not appear, and the time of recording is also unknown. It was incumbent on the party claiming under the execution to shew that the execution was actually sealed before the death of Randal Rickey, if it was not sealed till after his death it was void : all the common law doctrine as to judgments entered after the death of the party, has been put down by the case of Wood v. Hopkins, Pen. Rep. 689.
    3. Inasmuch as it appears that Randal Rickey died possessed of more goods and chattels than were sufficient to satisfy the execution, the sheriff had no right to take the real estate in execution. When the execution reached the hands of the sheriff there was more personal property in the county than was sufficient to pay Randal Rickey’s debts. On the last of December, 1802, Benjamin Hornor took out letters of administration, and an inventory was made out by him on the 31st of December, by which it appears, that there was personal property to the amount of £15(J, and the execution was only for 150 dollars; the execution might, therefore, have been levied on the personal property, and it was the duty of the sheriff to have taken the personal property first, for, by the very words of the writ, he is commanded first to take the personal property, and “ if there is no personal property, then (to take to the real estate. And it is only by a provision in a late statute, (Pev. Laws 671, sec. 2) that the defendant can elect to have his real estate sold first. The sheriff *had disobeyed' the precept — he had passed by the personal property and seised the real— and in so doing he had done wrong. It is no answer to say, that here no injustice had been done, for .that the whole of the property put together was not sufficient to pay the debt. But if the administrator had sold, instead of the sheriff, there would have been enough.
    4. That Hornor being the administrator, and having property in his hands sufficient to pay the execution, the purchase by him of the lands sold at sheriff’s sale was fraudulent and void. Benjamin Hornor, whose duty it was to pay this execution, who was a trustee for the creditors and the children of Bandal Bickey, himself became a purchaser of this property; this the administrators cannot do, and the sale is void. It was the duty of the administrator to pay off this execution; this was the only execution which was a lien upon the land : there was a judgment in the county of Burlington, but that was no incumbrance upon the land in the county of Hunterdon, nor upon the personal estate in the hands of Hornor, who resided in the city of Philadelphia.
    The sale of the personal estate by the administrator took place on the 19th January, 1803, and at that time he had property in his hands sufficient to pay this execution, which was not incumbered by any other lion, and which ought to have been applied to the payment of it, and having the money in his hands, he suffers the real estate to be sold. If the administrator was the only purchaser there is no doubt the purchase would be void, but other persons joining with him cannot better it; they chose to embark their fortunes with him, and they must sink or swim together.
    
      Ewing, contra.
    The first question is, whether the estate was liable to be sold ? In England the mode of proceeding is entirely different, as it regards lands, from that in this state. What was the nature of the estate of Bandal Bickey ? It was a vested remainder in fee-simple in Bandal Bickey. This position will not be disputed. Can such estate be seized and sold by the sheriff under an execution ? Of this there can be no doubt, for it is an absolute estate, and the person in whom it is vested has the actual control over it, in every respect, except as to the pernancy of the profits. How it would be an anomaly that there should be in this state an estate which a man may convey away *by deed or devise, and yet it could not be taken by execution. 1 It is said, that the defendant must be seized; but the term seizin applies as fully to an estate in remainder as in possession ; and if it depends upon this term, an estate in remainder is as fully within the act of the legislature as an estate in possession. See 1 see. aet, Rev. Laws 433. By this section, all lands, tenements, and hereditaments may be seized. But if it is to be confined to such lands, tenements, &c., whereof a man seized, still a remainder would be embraced; for whether it is a seizin in fact or in law makes no difference. But what kind of seizin had the defendant ? I contend he had a seizin in fact.
    2. Judgment having been obtained against Bandal Bickey in his lifetime, a sale made upon that judgment was regular and valid. The judgment was signed on the 1st September, 1802; on the 1st of December, the attorney drew the execution, and sent it to the sheriff; on the 3d, Bandal Bickey died, and on the 18th, the sheriff i-eceived it. Now it does not appear that the execution was issued after the death of Bandal Bickey. It may have been sealed and recorded before the death of Bandal Bickey, and, in the absence of direct proof, the court will presume that it was done before : the maxim is, omnia prcesumuntur rite aeta, ut res magis valeat quam pereat. But if the execution was issued after the death of Bandal Bickey, yet the land was bound, and the sale regular. Theft. fa. was issued during the vacation subsequent to the term in which this judgment was entered. The settled doctrine of the common law is, that an execution thus issued is good, although the party is dead, and there is no statute in this state altering it. By our act, lands are bound from the entry of the judgment on record. Rev. Laws 431, see. 2. Personal property is bound from the time of the delivery of the writ to the sheriff. Ibid, see. 3. An execution may be issued after the decease of the person against whom it purports to be issued. Parson v. Gill, 1 Ld. Ray. 695; 3 P. Wms. 399, 408; Strange 882; 4 Ld. Ray. 849. The conduct of administrator was not fraudulent, but fair, honest, and praiseworthy, for there was not property sufficient to pay the"judgments.
    
      Randal Rickey died after the passage of the “ act for the distribution of the estates of persons who die, not leaving sufficient property to pay all their just debts.” Pat. 435. Hornor did not receive the whole of his debt. He did no injury to the heirs. It *is said, that if the property could have been sold by administrator it might have brought more; yet this is merely problematical. The sale by the sheriff was attended by less expense than if Hornor had applied to the Orphans’ Court for an order for sale, which ■would have been expensive, and the interest of the debts would have been accumulating in the meantime.
    But, it is said, that the sale is invalid, because the administrator is one of' the purchasers; but the case to which the gentleman has made allusion does not apply to this case; for if the sheriff had a right to sell then, Hornor, the adminstrator, might become a purchaser. The rule to which the gentleman alludes is, that an administrator cannot sell and purchase at the same time; he cannot be both seller and purchaser: but that does not apply here.
    Although there was personal estate, yet the administrator could not make any application of the personal estate so as to have prevented this sale. His duty was plainly marked out by the act of the legislature. Here were certain debts, which were entitled to be first paid. Coe and son, although they had a judgment and execution, stood upon no better ground than any of the other creditors.
    It is said, the sheriff ought to have levied upon the personal property; and, not having done so, this sale of real estate is invalidated. To this there are two answers. 1. When this execution was given to the sheriff, there were no personal chattels upon which he could levy: for (goods being bound from the delivery) the goods, at that time, were the property of the administrators. Because the sheriff, in his return, makes no mention of personal property, it does not make the sale of the real property void: and his saying nothing about personal property, is the same as if he had declared that no personal property was to be found. It has been expressly determined, that the want of a return, that there was no personal property, will not vitiate the sale Coxe Rep. 39. 2. Although Hornor’s judgment was in the county of Burlington, yet he was equally entitled to be preferred as if it was in this county; — it was entered of'record in the lifetime of Randal Rickey.
   The opinion of the court was delivered by

Eokd, J.

The lessors of the plaintiff claimed the premises in question, as heirs at law of Raudal Rickey, their father, who *died seized, and contested the legality of a sale of the premises made by the sheriff, under an execution against their father, Randal Rickey, after his decease. If the sale was valid, it, of course, destroyed the title of the heirs at law, aüd if not valid, their title must, of consequence prevail. All depends on the legality or illegality of the sále.

It is objected to it, in the first place, that the estate of the ancestor was of such a nature that it could not b'e seized and sold under the statute making' lands liable to be sold for the payment of debts. Randal Rickey claimed under a devise that was made t'o the widow “for and during her natural life, and after her decease to Randal Rickey, his heirs and assigns forever;” and under this devise he took a vested interest' in the remainder, a present fixed right of future enjoyment, depending on no dubious or uncertain event. The possession of the tenant of the particular estate is construed to be the possession of him in remainder, so that' the remainder man is held to be seized of his remainder. 2 Bl. Com. 166. Hence he had an estate that he could sell, convey, devise or transmit to his heirs by descent. ■Now the statute makes any real estate liable to be taken on execution whereof the defendant was seized on the day of entering judgment; and as this was real estate in the seizin of the defendant, it was liable to be taken and sold for the payment of his debts.

*In the second place, it is objected, that the execution against Eandal Bickey was not, sealed till after his death, and therefore that it was void. The fact of its being sealed before his death, is not agreed upon so clearly as every fact ought to be in a case that is stated, or in a special verdict. ' The execution was draion and transmitted to the clerk on the first day of December, and if he sealed it on the day he received it, the sealing was in sufficient time, as Eandal Bickey did not die till the third day of the same month. Now it was not only as easy for the clerk to seal it on the clay it came to hand, as to postpone it to a future day, but in point of duty he had no right or discretion to delay the process of the court. If one fact might therefore be established by inference from another, the legal inference or presumption would be, that the officer did his duty when nothing appeared to the contrary. Default, like guilt, is never to be presumed ; and in this point of view the execution was sealed in time. But suppose it were otherwise, I think at this day, and supported by so many adjudged cases on the point, both ancient and modern, it may be safely asserted, that if an execution be tested in the defendant’s lifetime, it may be taken out and executed after his death. See Tidd’s Prae. 915, and the eases there collected. The execution thus sued out will not bind the goods, so as to defeat bona fide purchasers thereof before its delivery to the sheriff; nor will it be affected by the statute giving priority to judgments entered up in the lifetime.of persons dying insolvent, because that statute was not intended to interfere with executions lawfully sued out; it relates only to judgments, *and the case of Wood # Hopkins, Pen. Pep. 689, has no perceivable bearing on executions. If the inability of a person deceased to make the election provided for defendant in the eleventh section of the act (Pev. Paws 433) were a Sufficient reason for destroying the exigency of a writ, it would follow that -the death of any defendant twenty days before sale would paralyze executions in all cases. It would be much safer to hold, that under the equity of the statute this privilege of election might be exercised by the heir or executor of a defendant deceased, than to make it an engine to destroy the execution which it professes only to regulate. Pev. Paws 433, see. 11.

The last objection is, that the administrator committed a fraud in purchasing the real estate himself, seeing, he acted in the character of a trustee, and had assets of the personal estate wherewith he might have paid off this execution, without suffering the lands to be sacrificed at a sale by the sheriff. The answer which has been given to both branches of this objection seems to obviate them entirely. His being a trustee of the personal fund did not disqualify him to bid for the landed property, he not being the person intrusted to sell it. It is not analagous to the cases where a trustee has sold to himself, or employed an agent to bid for him. As to withholding the personal assets in order to force the real estate to a sale, the conclusion is not warranted by the case as stated. There were a number of judgments entitled by statute to be paid ratably according to their amount, and the moveable estate in the hands of the administrator was not sufficient to pay them all; if, therefore, he had paid otherwise than ratably it would have been in contravention of the statute, and an act of mal-administration. On the whole case, therefore, let judgment be entered for the defendant.

Kirkpatrick, O. J., and Rossell, J., concurred.

Judgment for defendant. 
      
       See Watkins'¿Essay on Descents 40, where he says — “Though a person is said to be seized of a remainder or reversion expectant upon an estate of freehold, and such seizin is oiten styled a seizin in law; and so a seizin in deed and a seizin in law be supposed to exist together of the same estate; yetthis confusion seems to have arisen from the different acceptations in which the word seizin has been taken; and from using it in a general sense, when it should be taken in a strict or confined one; or in a confined one, when it should bo used in a general sense.
      “ By the seizin of such reversioner or remainder man, is meant in reality, no more than that such reversioner continues, or that such remainder man is placed in the tenancy, and that the property is fixed in him. The particular estates and the reversion or remainders over, form, in law. but one ('date; and, consequently, by delivering the possession to the person first taking, it extends to all. All therefore, may be said to be seised, as they are all placed in the tenancy, and as the property is fixed in all.
      •* But, on the other hand, when the seizin is divided into a seizin in deed and a seizin in law. we confine it merely to the present corporeal possession of the premises; not extending it to the future of an interest which is to come into actual enjovment on a future event. The seizin, not strictly in its technical sense, but in its primitive and vulgar acceptation, i. e. the corporeal or visible possession, must in the last case be really expectant upon, and postponed to the determination of the particular estate. And in this sense the reversioner cannot be seized, either in deed or in law.” See further, on this subject, p. 44, 46,47.
     
      
       A remainder or reversioner expectant on an estate of freehold will admit of no mesne seizin while it continues in a course of descentand this principle presents a solution of the question, whether a remainder or reversion shall be subject to the debts of the mense remainder man or reversioner? In Robinson v. TonyeVAI3. Wins.) it is said of an advowson, that “ as it may be sold and comes to the heir by descent it is reasonable it should bo assets.” Now though a reversion or remainder on a freehold may be sold, yet it may not come to the heir by descent from the very person who contracted the debt; and therefore a distinction should be made between extending it in the debtor’s lifetime fas he has power over it) or in the handy of his devisee (as the remainder or reversion is devisable, and the devisee claims under him who contracts tlie debt) And it should seem that if judgment be had iu the debtor's lifetime, it will bind the property, though no execution be taken out till the property descend toothers. But where no judgment bo liad in the debtoi’s lifetime and the stock of descent bo not changed by such mesne, it should seem that the person faking such remainder by descent would wot be subject to the debts oí a mine- ' remainder man or reversioner: as he would not take by descent from him, but from the original donor, and so paramount the mesne’s charges. Watkins Ess. 140-1. Bro. Assets, Pl. 19. 1 Bro. Ch. Ca. 240, Marchioness of Tureedale v. Earl of Corentry.
      
     
      
      
         See Center v. Billinghurst 1 Cowen’s Rep. 33. An execution tested after plaintiff’s death is irregular, but may be amended. It may be issued after his death, if tested before.
     