
    John Ashworth et al. v. Demier & Boyles, Adm’rs, et al.
    
    CoNDEinsTATiOJir. Death before sale. Satisfaction set aside. In a case of condemnation and order of sale of land to satisfy a judgment obtained before a Magistrate, if the defendant die before the actual issuance of the order, or even before a sale under it, the. inheritance descends to the heirs, and no valid sale can be made until scire facias against the heirs and revivor.
    FROM LINCOLN.
    Appeal from the Chancery Court. A. S. Marks, Chancellor.
    J. G-. Carrigan for Ashworth and wife.
    Boyles & Burkam for Dernier et al.
    
   Turkey, J.,

delivered the opinion of the Court.

In a case of the condemnation and order of sale of land to satisfy a judgment obtained before a Magistrate, if the defendant die before the actual issu-anee of the order, or even before a sale under it, the inheritance descends to the heirs, and no valid cale can be made until soire facias against the heirs and revivor.

The order of condemnation is not a judgment for money, such as awards execution, but is merely the action of a Court of ILecord in aid of the Magistrate’s judgment and execution. The levy by the constable invested him with no title. He had no authority to sell by virtue of it, but must bring it into Court with his levy endorsed upon it, that the Court may direct an order of sale to issue, which process speaks only from the time of its issuance^ and must, to be valid, be against parties in existence.

The' order is in the nature of a decree in Chancery, interlocutory In its character, so that if the process issued from it be returned not fully satisfied, the Court may pi’oceed to render judgment for the-remainder of the debt and award execution.

The sale here is invalid, the bill, however, showing that the administration has long since been settled, which is equivalent to showing the personal estate has been exhausted, and upon the maxim that he who seeks equity must do -equity, the defendants are entitled to a decree for the sum due their intestate, to be credited by the value of the rents and profits of the lot during the time it was actually used or occupied by Farquaharson, or those claiming under him.

The cause will be remanded for an account, and the execution of a decree pursuing this opinion. The balance due to Earquaharson will be a lien upon the house and lot.

Reverse the decree.  