
    H. Harrington vs. N. O'Reilly et al.
    An execution, the teste of which bears date after the death of the defendant, should be quashed upon motion. Yet if a sale take place under such execution, as the execution is not void but only voidable, the sale will be valid as to third persons who purchase under it, and will be protected ; the purchaser’s rights will not be affected by subsequent acts, over which he had no control.
    Executions until a sale under them, when new interests accrue, are always under the control of the court from which they emanate; if improvidently issued, they should be quashed ; as courts should prevent any abuse of their process before rights are lawfully acquired under it.
    Therefore, where an execution bearing teste after the death of the defendant is issued without revival, and levied on property of the defendant in the hands of a third person by whom it is claimed, under a purchase previously made on another execution against the same defendant: and bond given to try the right of property, the court, as no new rights have accrued under the execution,, ought, on motion of the claimant of the property levied on, who as to that property stood in.privity of estate with the administrator of the defendant in execution, to quash the execution thus irregularly issued.
    A purchaser under execution, of personal property, stands in privity of estate as to that property, with the administrator of the defendant in the execution ; and when it is attempted to take away his rights by another execution against the same defendant, he ought to be permitted, as to the plaintiff in such second execution, to interpose any obstacle which the representative of the defendant could do.
    An execution that ought to have been quashed on motion made, should not have been admitted in evidence in favor of the plaintiff therein.
    In error from the circuit court of Holmes county; Hon.Morgan L. Fitch, judge. \
    On the 24th day or January, 1838, N. and E. O’Reilly recovered a judgment against Jesse Wadlington and others in the circuit court of Holmes county. On the 19th day of April, 1838, Solomon West recovered a judgment against the same parties. On the 7th of October, 1844, an execution from the judgment in favor of N. and E. O’Reilly, was issued and levied on a negro as the property of Wadlington; which negro was found in the possession of H. Harrington, and was claimed by him as having been purchased by him in 1839, under that judgment in favor of West. An issue to try the right of property was made up and came on for trial at the April term, 1845, of the Holmes circuit court. Before the trial of the cause, Harrington moved to quash the execution on the judgment in favor of N. and E. O’Reilly, because Wadlington, the defendant, was dead before it bore teste, and had been dead for three years prior to the issuance of that execution. No administration had been granted on his estate; the motion was overruled, and exceptions taken.
    At the trial of the issue, the plaintiffs in the execution, namely, N. and E. O’Reilly offered their execution in evidence, to which the claimant objected, and offered to prove that Wad-lington, the defendant, was dead prior to the issuance and teste of the same. The objection was overruled, the evidence re-. jected, and the execution admitted, to which exceptions were-again taken.
    It is not deemed necessary to notice the other points made ia, the cause. The jury found for N. and E. O’Reilly; and Harrington prosecuted this writ of error.
    Brooke, for plaintiff in error.
    The court below should have quashed the execution for the death of Wadlington. 3 S. & M. 17. Harrington had a right to make the motion, being interested against the execution in the property levied on. On the trial of the issue, the court should have heard evidence of the death of Wadlington, because in such case the plaintiff in execution is assimilated to a plaintiff in detinue — his execution is his evidence of title — a sale under an execution, issued after the death of the defendant, can confer no title, and of course the execution sought in this case to be enforced was improperly admitted as evidence of title. See Gwin v. Latimer, 4 Yerg. 22, and authorities there cited.
    
      
      W. R. Miles, for defendants in error.
    Wadlington’s death was not a matter to be inquired into by the plaintiff. A sale under the execution would have been good. 5 How. R. 253 — 6; 2 id. 1. No person other than a representative of Wadlington had a right to move to quash; and the refusal of the court to entertain the motion as made was not error.
   Mr. Justice Clayton

delivered the opinion of the court.

The appellees obtained a judgment against one Wadlington, in January, 1838, and in April, thereafter, Solomon West likewise obtained judgment against him. On this latter judgment execution issued, under which the appellant Harrington purchased the slave in controversy, in April, 1839. The defendant in the executions, Wadlington, died in 1841-, and no administration was granted on his estate. In October, 1844, the appellees caused an execution to be issued on their judgment, without any previous process to revive it, and the slave in controversy was seized under it. Harrington had been in the• peaceable possession of the slave, from the time of his purchase in 1839, and this proceeding was instituted to try the right of property. The verdict and judgment below were in favor of the appellees.

The first error assigned is, that the court refused to quash the execution of O’Reilly upon the motion of Harrington, and improperly admitted it as evidence. It has been settled by this court, that an execution, the teste of which bears date, after the death of the defendant should be quashed upon motion. Davis v. Helm, 3 S. & M. 1. But the usual language of the books is, that this can only be done by the party, or his representative. The question generally arises, when a sale has already taken place, and where the contest is between the purchaser at the sale, and some other person, in regard to the property. In such case the courts have uniformly decided, that the execution is not void, but voidable, and refused to set aside a sale under it, made at a time when the execution was valid. The execution is valid, until avoided, and a stranger who purchases under it, will be protected. His rights are not to be affected by subsequent acts, over which he had no control. Woodcock v. Bennet, 1 Cow. R. 737; Jackson v. Robins, 16 Johns. 537; Jordan v. Pool, 6 Iredell, 288. This reasoning has no application to the case before this court. There is no purchaser under the execution, whose rights are involved. Executions, until a sale under them, when new interests accrue, are always under the control of the court from which they emanate. If improvidently issued, they should be recalled or quashed. The process of the courts should not be employed, except in cases authorized by law; and courts should prevent any abuse of their process, whenever it can be done without prejudice to interests lawfully acquired under it. In this view of the law, the execution in this case being erroneous and voidable, ought to have been quashed. It was not consummated by sale, and no injury could arise, from stoppiug an unauthorized proceeding.

If the motion to quash had been made by the administrator of Wadlington, there could have been no doubt. But Harrington, as the purchaser of Wadlington’s interest, stood in privity of estate with him to the extent of that interest. When it is attempted to take away his rights by an execution against Wadlington, as to the plaintiff in the cause, he ought to be permitted to interpose any obstacle which the representative of Wadlington could do.

We think, therefore, the execution should have been quashed, upon the motion ; and the determination of this point,. makes the decision of the others unnecessary.

If the execution had been quashed, of course it could not have been evidence in favor of the plaintiff in the execution. It was therefore improperly admitted.

The judgment is reversed, and the cause remanded for further proceedings.  