
    John O. Smyth v. John H. Anderson, William Anderson, James Anderson, and Lewis Mason.
    1. The levy of an attachment, in an action against a devisee, will not defeat or prevent the execution of a power of sale, given by the testator to his executor, nor will such levy affect the title of the purchaser at the executor’s sale.
    2. A. testator devised his estate to his five children in equal shares, and authorized and empowered his executor to sell and convey all the real estate of which he died seized. A creditor of one of the devisees caused an attachment to be levied on an undivided fifth part of said real estate. Afterward, the executor, in execution of the power, sold and conveyed all said real estate. Reid: That the purchaser acquired title to the land conveyed, unaffected by the levy of the attachment.
    Motion for leave to file a petition in error to reverse the judgment of the District Court of Ashland county.
    John P. Anderson died testate, seized of about 227 acres of land. By his will he devised his estate in equal shares to his four sons, John H., William, Albert, and James, and his daughter, Eliza. He appointed hie son, John H. .Anderson, executor of his will, authorizing and empowering him to sell at private sale or otherwise all said real estate on such terms as he might think proper. Before the power of sale was exercised by the executor, the plaintiff, a creditor of the devisee, William Andersou, commenced an action against him in the common pleas, and caused an undivided fifth interest in said lands to be attached, as his property, to satisfy the claim sued on in that action. He also caused the defendants, John H. Anderson and James Anderson, to be served with garnishee process.
    Afterward, and during the pendency of the proceedings in attachment, the exeeutor sold and conveyed all said lands to the defendant, James Andersou, who soon thereafter conveyed ninety-five acres of the same to the defendant, Mason. The executor and both purchasers had full knowledge of the proceedings in attachment at, and prior to, the time of the purchase and sale. The plaintiff recovered a judgment in the action in which the order of attachment was issued, against the defendant, William Anderson, for $4,321, and obtained an order for the sale of the attached property. The action below, the judgment in which it is now sought to review, was brought by the plaintiff'to set aside both said conveyances, in so far as they affect the interest attached, as made in fraud of the right he acquired under the attachment. '
    The petition, stating the foregoing facts, was demurred to by the defendants, James Anderson and Lewis Mason, on the ground that the facts stated were insufficient to constitute a cause of action against them. The court sustained the demurrer, and dismissed the petition, as to the defendants demurring. On appeal to the district court a like judgment was rendered. It is now sought to reverse both judgments.
    
      Smith Smüh, for the motion.
    
      W. Osborn, contra.
   Boynton, J.

The position assumed by counsel for the plaintiff is, that, the executor having but a naked power of sale, the legal title to. the lands of which the testator died seized vested and took effect in the devisees under the will; and that inasmuch as the statute, upon a proper showing, authorizes the attachment of whatever interest a debtor may have or own in any property not exempt from execution, the lien acquired by the levy of the attachment in the action against William Anderson, was not defeated by the subsequent sale of the estate by the executor.

Granting that the devisees took the legal title, they received it subject to an outstanding power of sale in the executor, the execution of which would at once divest them of their title and pass it to the purchaser.

The instrument creating their estate, lodged in the executor power to dispose of the fee. Without an election to take the land instead of the proceeds to be derived from its .sale, no incumbrance the devisees might see fit to place upon .it, would affect, much less defeat, the right and power of the ■executor to convey away the title. The lien of a judgment .against a devisee could operate no further 'than fo bind the .interest received. It could not impair the right of the exe•cutor to convey the premises in execution of the power ■conferred by the testator. A creditor by seizing the property of his debtor by process of law ordinarily acquires no greater interest than his debtor possesses. This is the general rule.

The estate the devisees took by the devise was not an absolute estate in the full sense of that term. One of the principal incidents of ownership, the power to sell and convey, was vested in another. Upon the execution of such power, the title of the devisees under the will became, ipso facto, extinguished, and the fund arising from the sale became a substitute .for the land conveyed. If the estate had not been disposed of by the will; if the decedent had merely clothed his executor with a power to sell and convey, leaving the distribution of the estate to the law of descents, and'the attachment had been levied on the interest of William Anderson, descended to him as heir, before the power of sale had been executed, the case, in its legal aspect, would not be changed. .In such case, the legal title would have gone to the heirs’subject to the power in the executor to divest it,tby a sale and conveyance of the estate to which the power attached.

And a seizure of the interest of the heir by levy of execution or attachment, would have no possible effect on the executor’s right to convey. Allison v. Wilson’s Executors, 13 Serg. & Rawle, 330; 4 Har. (Del.) 343.

Whether the attachment in the present case gave or created an equity in the fund arising from the sale by the executor, is a question not before us. It is, however, claimed that, where a mere power of sale is given to an executor, or trustee, or where he is imperatively directed to sell, and to distribute the avails of the sale among ascertained beneficiaries, they may defeat the right to execute the power, or may extinguish it by electing to take the land instead of the proceeds arising from thé sale. Holt v. Lamb, 17 Ohio St. 374; Reed v. Underhill, 12 Barb. 113; 1 Leading Cas. in Eq. pt. H. 1168.

Admitting the law to be as thus claimed, it does not affect the case under discussion. - Here there was no election declared. It is the election, and not the mere right to make it, that, changes the character of the estate. 1 Story’s Eq. Jur. § 793

Motion overruled.  